New York’s Ticketed Event Ban Gets Slapped Down Again — This Time by the U.S. Court of Appeals

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An appeals court has upheld a November ruling on New York’s ticketed event ban. Photo Credit: Bill Oxford

In November, Digital Music News was first to report that a judge had invalidated New York’s controversial ticketed event ban, which prohibited live music that was not “incidental to the dining experience.” Now, an appellate court has upheld the preliminary injunction preventing state authorities from enforcing the ban.

New York’s ticketed event ban began making headlines in mid-August, when the State Liquor Authority (SLA) indicated in a Q&A-style document: “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.”

A number of musicians and business owners took issue with the requirements, which applied to small, socially distanced gigs as well as performances that were held outside. The SLA promptly responded to the pushback with a brief statement, which read in part: “This guidance is not new, 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.”

New York native Michael Hund then fired back against the ticketed event ban with a lawsuit in August, naming Governor Cuomo and State Liquor Authority Chairman Vincent Bradley as defendants. In the firmly worded complaint, the Buffalo Music Hall of Fame guitarist described the measure as an unconstitutional “overstep of government authority” that was having a “discriminatory impact” on musicians and venues.

A judge agreed with Hund’s arguments in November, enjoining the State Liquor Authority from enforcing the incidental-music ban and stating of the ruling: “Even in a pandemic, state police powers are subject to limitations, and state action taken to protect public health cannot infringe constitutional rights.”

The U.S. Court of Appeals for the Second Circuit upheld the November ruling today, January 6th, by dismissing without prejudice the SLA’s motion for a stay.

In explaining the decision, the three-judge panel specified that a state court had “permanently enjoined” the State Liquor Authority from enforcing the ticketed event guidelines in a different case (filed by a Buffalo tavern and live music venue).

“State executive orders are in place that ban the operation of music venues independently of the State Liquor Authority guidelines,” continued the court. And with the ticketed event ban and potential venue performances both on hold, the requested stay is “unnecessary,” the judges said.

About one month back, a judge ordered Columbus nightclub Aftermath to shut down for COVID-19 violations stemming from a packed Trey Songz concert. And in October, German scientists determined that indoor concerts are safe, in terms of attendees’ novel-coronavirus transmission risk, with masks and proper ventilation.