NYS adds language clarification for ‘incidental’ music following increase in advertised events

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ROCHESTER, N.Y. (WROC) — Earlier this week, the New York State Liquor Authority made an adjustment to their live music and performance language.

Originally, the language reflected that only “incidental music” was allowed; meaning music that was essentially just in the background.

Now the NYSLA says that it cannot be “incidental” if the music is ticketed or advertised.

The SLA says that the guidance is not new, but “clarified” from the original. However, that new language effectively ends any meaningful way that bars, restaurants, and musicians can make money from any sort of live music or performance.

“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. Thanks to New Yorkers’ hard work, we have achieved, and so far maintained, one of the lowest rates of infection in the country, but these high-risk gatherings would create exactly the situation we are trying to avoid, where people congregate, mingle, and create congestion at points of ingress and egress,” said William Crowley with the SLA.

“This week, after seeing an increase in establishments advertising ticketed events, the SLA clarified language on its website and proactively emailed all bars and restaurants to ensure they were aware of the months-old restrictions,” he added.

News 8 obtained that email from a source who choose to remain anonymous:

“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.”

“New Yorkers need to remember we are still fighting a global pandemic,” Crowley further added. “And with dozens of states facing outbreaks, we must continue to take the threat of spreading COVID at mass gatherings seriously.”

New York State or the federal government has made no signals that they will provide funding to performing arts industries. Erica Fee, the producer of the Rochester Fringe Festival, says that the performing arts industries not only provide culture, but provide huge benefit to many others. She also states plainly what the performing arts community might look like without federal help:

“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.”

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