Court ruled from bench – written order to come. SLA likely to continue to enforce existing rules against all other businesses while they appeal. Sounds like this decision and federal ruling last week conflict and will need to be sorted out by further court action.

Judge sides with Sportsmen’s Tavern, calls ban on live music advertising ‘irrational’

The Buffalo News

State Supreme Court justice on Wednesday called the state’s pandemic-related ban on advertised and ticketed shows at the Sportsmen’s Tavern and other venues an unconstitutional abridgment of free speech and prohibited the State Liquor Authority from enforcing it.

The Black Rock bar and restaurant took the state to court, calling it absurd that it could offer live music but not communicate to the public who would be performing through either advertising or ticketing.

Attorney Paul Cambria, who represented the establishment, noted that under the state’s rationale, an unadvertised house band performing in a restaurant where the owner advertises free meals to the first 50 customers would be entirely permissible. But venues were forbidden from advertising the appearance of a rock band or any kind of musical group.

“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?” Cambria asked. “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.

At issue was the State Liquor Authority’s guidance on having live entertainment in dining areas.

The authority has said “that 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 court papers, 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.”

Sedita said the case was not about whether live musical performances at Sportsmen’s Tavern or any other bar and restaurant are too dangerous during the present pandemic. The state has already decided that dining and musical performances are reasonably safe, provided the preventative measures are followed, he added.

“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.

“In other words, 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?” he said.

Sedita added it was important to note that the issues raised in the case come amid “an epidemic the likes of which we have not seen in over a century.” Millions of Americans have contracted Covid-19 and over 200,000 have died so far, he noted.

And Gov. Andrew Cuomo has made combating the transmission and spread of the coronavirus his top priority, the judge said.

“One can agree or disagree with the governor’s politics or ideology but one cannot seriously question that his chief motivation is to safeguard and protect the people of this state,” Sedita said.

Still, “the government, even in the context of a health crisis and even when led by someone with noble motivations, does not wield unlimited power,” Sedita said. “We live in a constitutional republic with separation of powers. What that practically means is that the legislative and executive branches of governments cannot pass laws or enact regulations that violate the limitations placed on government by the Constitution.”

State officials, in affidavits to the court, said unregulated social gatherings, especially at close distances and especially indoors, are largely responsible for spreading Covid-19. That is why the state limits occupancy and mandates physical distancing and mask wearing.

“Other than theorizing that advertising and ticketed sales would transform Sportsmen’s Tavern into a dreaded concert hall, it is unclear how advertising and ticketed sales would do that, or even could do that, especially if Sportsmen’s is enforcing occupancy limits, cleaning, disinfecting, mask wearing and social distancing,” Sedita said.

Sedita said ticketed sales actually enhance the state regulations by controlling the number of occupants and assuring that they will be assigned to tables that are properly distanced from one another as well as the performers.