Update from New York state says all indoor ticketed music, performance art events are prohibited

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News 8 obtained an email sent from the State Liquor Authority - from a source who chooses to remain anonymous - that 'reminded' license owners that no ticketed events are allowed; even though two days ago none of their guidance suggested that

ROCHESTER, N.Y. (WROC) — The New York State Liquor Authority appears to have amended their guidelines regarding live music, again.

In an article News 8 published on Monday, the state clarified that bars and restaurants were only allowed to have live music if it was “incidental,” but all “performances” would be banned. That ruling allowed Three Heads Brewing, for example, to have live music indoors, but the huge hall at The Hochstein School to remain empty.

Now the SLA says that all “ticketed” events are canceled, and the defintion of “incidental music” has been clarified as:

“Incidental music is 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.”

Danny Deutsch, the owner of Abilene Bar & Lounge, was going the incidental music route Wednesday night with a band called “The Bell Weather Breaks” in-house. Deutsch says he spoke with the Governor’s office for extra clarification on what that entails. He says incidental music basically boils down to avoiding large crowds and keeping food service at the core. 

“Everyone that’s come in here is socially distanced, getting a bite to eat, and hearing a band. Truly incidental,” he says.

He says the deal now is not ideal, but it’s doable. But don’t get him wrong. Even thought there’s a tip jar for the musicians, and he has foot traffic in Abilene, Deutsch says these are still very tough times.

“It’s hard. There’s no question it’s hard right now. So, we’ll play by the rules as long as we understand the rules,” he says.

News 8 has obtained an email that was sent by the SLA from an anonymous source who received it. The email claims to be a reminder, but it in fact has new guidance than what was presented on Monday.

Email from SLA provided by an anonymous source:

“To all licensees with on premises service privileges,

We would like to take a moment to remind licensees (that may have the privilege of providing entertainment) of what has currently been deemed safe in terms of live entertainment.  Currently, only incidental music performances are safe and permissible.  Incidental music is 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.

If you would like to provide incidental music, please also take a moment to note whether your license allows for such.  An on premises license may provide incidental music so long as  the type of music is explicitly permissible on the license certificate.  A manufacturing license may provide incidental music unless the license certificate explicitly prohibits it.  Note as well that karaoke is not presently permitted for reasons of health and safety.  

We hope that this helps to clarify your privileges and responsibilities.  If you have any further questions, please consult the existing DOH and SLA Guidances.”

Here is the statement provided by Empire State Development spokesperson Monday, which does not mention anything about tickets, and only addresses how incidental music is different than performing arts:

“Live music is allowable only at bars and restaurants for seated guests who are ordering food if it is a part of their liquor license.  An exception to this is for drive in concerts, which are allowable only if patrons remain in their vehicles at all times unless they are using the restrooms.  All social distancing and cleaning and disinfecting protocols must be adhered to while patrons are using restrooms.

Live entertainment, whether indoor or outdoor, is not permitted at this time. Shows of this type are high-risk gatherings that create exactly the type of environment we are trying to avoid, as individuals mingle and create congestion at ingress and egress.  Reports show that infections are rising in more than 35 states and that officials in those states have been forced to reclose businesses and other parts of the economy that were opened too early. Additionally, Every public opinion survey has shown an overwhelming majority of New Yorkers support our re-opening approach, and protecting the health and safety of New Yorkers remains our number one priority.”

When asked on the health of performing arts centers on Monday — which generally host shows that are ticketed — Rochester Fringe Festival producer Erica Fee said:

“We do need to recognize though that if we aren’t going to supplement performing arts with funding from the state, that when the pandemic is over, we may not have performing arts anymore,” she said. “We certainly won’t have all the venue we’ve been used to enjoying here in Rochester. So if this is something that is important as part of our culture, we need to find a way to operate safely.”

Fee did however say Wednesday that she was happy to see that “loophole” that allowed bars to have live music, but not performing arts centers; but she further added that she thinks any indoor music or performance is problematic, and the big issue has been how the state has communicated these changes.

“Ticketing is actually great, event safety experts say that ticketing — even for free events — is a great way to control your crowd,” she said.

She is disappointed that the state isn’t doing anything to help outdoor events, which are much safer, which have a very short shelf life left, especially given Rochester’s long winters.

“Performing inside isn’t safe for patrons, and it’s not safe for artists in (the) long run,” she said. “We really need to be focused on sustaining this industry. Performing artists should not be losing out financially over this, for doing the right thing (by not performing), they shouldn’t be hurt.”

Fee also says that the US needs to “get with the rest of the world” when it comes to funding the arts, pleading that funding comes from even above the states.

“The state of New York is in dire straits economically,” she said. “Where we need help right now is from the federal government.”

MORE | Why bars and restaurants can have live music, but performing arts centers can’t

Empire State Development did not immediately return a request for comment as of Wednesday afternoon.

The Greater Rochester Chamber of Commerce submitted this statement Wednesday:

“Rochester Chamber continues to push every single day to reopen as quickly as is safe. The resilience of this community is remarkable as is the passion and tenacity of business owners throughout our nine-county region. With Bob Duffy leading the effort here, the Finger Lakes region has been the first re-open for each of the four phases. And thanks to Governor Cuomo and his administration, New York States has been protected from the resurgence being experienced across the country. The last thing we want to see is irresponsible reopening such that we are forced to revert back to square one. We are doing great, and need to continue on this trajectory. Ensuring businesses are able to open their doors and flourish remains our top priority. We will keep working all day, every day to accomplish that goal.”

This guidance pertains to businesses with liquor licenses for entertainment purposes, and doesn’t include establishments like drive-in theaters where concerts have been organized in recent weeks.

From the end of the second paragraph in this outdoor guidance:

“Finally, this guidance also does not address higher-risk outdoor arts and entertainment activities including, but not limited to, places of public amusement (e.g., amusement parks, water parks, carnivals), concerts, or performing arts in excess of the non-essential gathering limit in effect for the particular region, which remain closed at the time of publication.”

However, indoor performances can’t happen for “casinos, concerts, movie theaters, performing arts, or other theatrical productions, which remain closed at the time of publication,” according to the indoor guidance.

Outdoor guidance

Indoor guidance

Check back with News 8 WROC as we will continue to update this developing story.

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