Music Biz 101 / Lesson 3: Is Cuomo Killing the Biz? No; But Yes

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Last week’s declaratory notice by the NYS Liquor Authority to its on-site consumption licensees regarding the Go/No-Go permissibility of live musical performances sure stirred the proverbial hornets nest; did it not?

The ensuing uproar – especially from the hospitality and musicians sectors – is both loud and angry, often framed in an ‘existential crisis‘ framework. It isn’t pretty, either.

So let us take stock of what is really going on here, while taking a separating the hype from the facts perspective in our approach:

First, one must understand that this set of published guidance applies just to who the NYSLA is legally entitled to administer and manage, that being those premises / venues that hold an a liquor license. So while the nuts & bolts here will govern the operational aspect of your typical hometown pubs, restaurant and (some) performance venues, they do not necessarily apply to a backyard picnic, coffee shop, or even a theater – assuming none are carrying a liquor license. Guidance for these settings comes from elsewhere.

Given that, let us look at the key components that are causing all this consternation…

Front and center here is the acid test of determining whether or not any given musical performance is the “Draw” or if it is “Incidental” (using the SLA’s own language). The former falls under No-Go while the latter is allowed.

So what is a “Draw” type of show or performance? The SLA tries to answer that by bringing up the qualifier of it being a “ticketed show” and/or one that is advertised . From there, it introduces the term ‘Incidental’ to describe a show that is the opposite, or one that does not act as the primary reason for people attending the event / premises. It is this attempt at clarity that failed miserably and ignited the ensuing bonfire.

Here we must pause for a Reality Check:

  • The vast, vast, vast majority – as in the 90%+ range – of musical performances taking place out there (pre-COVID or currently) are technically NOT EFFECTED by this language: most shows in licensed venues are NOT “ticketed” (i.e. with a cover charge) and do NOT meet the “primary draw” qualifier. Go ahead, let that gal on a stool croon for the diners in your joint. Nothing has changed there from where you were a week ago in this regard.
  • Sure , the term “Incidental” is offending to the sensitive ears of many musicians out there this week and was an unfortunate choice of words on the SLA’s part; but the cold hard truth of the matter is that the spirit of this distinction is valid — and long has been when analyzing this industry.(Note; we will dive into this deeper in a future session)

BUT….

Even after putting this “we’re offended by being called incidental” matter aside, there is one remaining trouble spot still remaining; and that is the “we can’t even advertise?” concern. So even those acts/shows that easily pass the “not the primary draw” test are still rightfully concerned about the limitation. So they can’t even make a Facebook event or post for the Happy Hour gig they picked up?

Our talks with SLA on this specific matter over the past few days have given us conflicting interpretations. When we pressed for a “can you put it in writing” type of formality, the Agency’s legal counsel obliged quickly with the following:

“… It is not incidental if advertised..”

So there we have it. Certainly NOT what we wanted to hear..

That said , even this incredibly disappointing policy does not –or should not — effect the decision-making of many venues; those for whom the music truly IS a background / ambiance function where the promotion of the specific performing act of any given night is not necessary. But for how many is this the scenario? 20% 30%? Hard to say..

For everyone else; it IS a problem.

So what we have now is a segment of the hospitality industry now joining the ‘Showbiz’ industry in not being allowed to stage and host live musical performances. The pain has now been shared when it comes to this aspect.

But we had that same problem last week and last year. It’s just gotten more seriously precarious. The key segment of the live music industry needs help; and it needs it ASAP. The immediate problem is that it does not have a centralized Voice to represent it and lobby for its needs.

All hands on deck.

Correction: the original version of this article included a scenario of advertising that might comply with the SLA advisory. A direct conversation with NYSLA legal counsel results in our removing that specific scenario. It was replaced here with the direct and distinct language above received today Monday Aug 24 from that interaction.

The views and opinions expressed in the article are those of the author and do not necessarily reflect the views or opinions of Nippertown.

4 Comments
  1. tim says

    Good reporting,
    The problem is how to keep me away from shows, Hopefully, we will figure this out next year how to get out there to lots of shows.

  2. ToastWRPI says

    Blame the entitled selfish morons who won’t wear a mask today. Because of them we won’t open fully.

  3. Alicia R lenhart says

    Can you share the specific person who spoke to at the NY SLA? I contacted them today and they told me “no Facebook mention of music because its considered advertising”. I sent them this article and they said what you suggest is not compliant.

  4. Robert Millis says

    See update in footnote

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