Judge Invalidates New York’s Ticketed Event Ban — “Even In a Pandemic, State Police Powers Are Subject to Limitations”

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Photo Credit: Bill Oxford

In late August, Digital Music News was first to report that musician Michael Hund had taken aim at the New York State Liquor Authority’s ticketed event ban in a lawsuit. Now, a judge has ruled in favor of the Buffalo Music Hall of Famer by issuing a preliminary injunction against the measure, which prohibited businesses from advertising and/or selling passes to even socially distanced performances.

State Liquor Authority (SLA) officials appeared to release the updated live-event guidance in August, before clarifying in a statement (following much public pushback) that “live entertainment activities, including all ticketed events, have been prohibited since New York went on PAUSE in mid-March to stop the spread of coronavirus.”

In summary, the far-reaching SLA requirements allowed commercial establishments to offer only music that is “incidental to the dining experience and not the draw itself.” Moreover, both selling tickets to events and promoting shows were deemed “not permissible” under the guidelines, which many musicians and fans criticized. To be sure, over 17,500 individuals signed a petition calling for the SLA to overturn the rules.

After acknowledging that the ticketed event ban may have targeted SLA-licensed venues and establishments more directly than Hund himself, Judge John L. Sinatra indicates that the regulation nevertheless “affects Hund in a ‘personal and individual way,’” given that he’s an active musician who earns a large portion of his living via ticketed (and advertised) performances.

This “personal and individual” impact is “sufficient to withstand” the defendants’ dismissal claims. Similarly, Judge Sinatra writes in his nearly 40-page-long ruling that Governor Cuomo “is immune from Hund’s claims under the Eleventh Amendment,” as he didn’t personally promulgate or enforce the ticketed event ban in his official capacity. Because the case’s other defendant, SLA Chairman Vincent Bradley, did promulgate and enforce the incidental music requirements, the suit was allowed to proceed against him.

“Even in a pandemic, state police powers are subject to limitations, and state action taken to protect public health cannot infringe constitutional rights,” continues the court, just after acknowledging that the state has proven historically able to implement certain health-minded “impositions” during “extreme times” like pandemics.

The most relevant distinction in the context of the SLA’s ticketed event ban, however, is that it “prohibits one kind of live music and permits another.” Characterizing the point as “arbitrary,” particularly with regard to the overarching benefit to the public health, the court relays: “With either type of live music, table-spacing, social-distancing, and face-covering requirements remain the same.

“The incidental-music rule is not narrowly tailored to serve the government’s interest in protecting public health,” proceeds Judge Sinatra, and attempts to curb the spread of COVID-19 “at the expense of burdening Hund’s First Amendment rights.”

Based upon these findings, the court granted the plaintiff’s motion for a preliminary injunction, writing: “Bradley, and all other governmental and/or law enforcement authorities under his control, are enjoined from enforcing the incidental-music rule portion of the New York State Liquor Authority’s Phase 3/4 Guidelines.”

This isn’t the first clash between event organizers, musicians, and New York State bureaucrats. Last month, New York State fined the promoters behind a Chainsmokers gig $20,000 for social-distancing violations. Though the charity performance was held outdoors and organized as a drive-in show, eager fans ultimately exited their vehicles and congregated before the stage.

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