News & Opinion » News

Even after court ruling, the future of live concerts during COVID is still unclear

Will our finest hour come too late?


Morning glory vines overtook my backyard this summer. They are deceptively beautiful, with their lush greenery and scattering of delicate trumpet flowers creeping up the deck railings, thin tendrils reaching out to embrace the legs of the grill. The morning glory grows with startling virility. If the dog stood for too long within its reach, I might have to tear the vines from her legs.

But in truth, the morning glory is a lie. It is a noxious weed. If I allow it to spread, it will kill everything beneath it.

For fans of metaphors, the morning glory is 2020.

Our arts and our culture are withering beneath the weight of the coronavirus pandemic. And if we don’t do something to preserve them — the unique restaurants, the gallery spaces, the quirky shops — much of that life will die.

I thought I had detected a little light creeping through the weeds last week when it was reported that New York State Supreme Court Justice Frank Sedita III sided with a suit filed by a small but vibrant Buffalo music venue and restaurant, The Sportsmen’s Tavern.

Specifically at issue was the New York State Liquor Authority’s controversial ban on advertising live music at bars and restaurants. Both musicians and businesses found themselves unable to promote shows after the Authority's ruling, which was put in place as a mechanism to help keep crowds within venue capacity guidelines during the coronavirus pandemic. Any music could be only what the Authority called “incidental.”

But it now appears that no one knows what relief Sedita’s ruling will offer for live-music venues. Seeking clarification, I sent this email to the Liquor Authority:

There is a great deal of confusion here in Rochester regarding the ruling last week on behalf of Buffalo’s Sportsmen’s Tavern that the SLA guidelines on advertising and selling tickets to live music events is unconstitutional. Does this ruling apply to all of New York State, just Erie County, or only The Sportsmen’s Tavern? Has the SLA released a clarification on this ruling?

No response as of this writing.

I sent a similar email to Bob Duffy, president and chief executive officer of the Greater Rochester Chamber of Commerce. He said he would need to wait until he heard back from New York state on its response to The Sportsmen’s Tavern ruling. Duffy later emailed back, “The only info that I have received is what I have seen in the media.”

The media is probably not where we want to start this conversation. If the state can’t interpret these questions, how is a bar owner supposed to do it?

Instead, let’s start the conversation with Gov. Andrew Cuomo. At his news conference on Monday, Cuomo said the state is taking over the enforcement of coronavirus pandemic guidelines. Unless social distancing is practiced, the governor warned he might shut down synagogues in Orthodox Jewish communities, where hundreds of people who are mostly without masks have been seen gathering.

Then the governor made the leap from Orthodox Jews to barflies. Cuomo applauded the Liquor Authority’s work in enforcing COVID-19 guidelines on bars and restaurants that, like synagogues, were drawing mass gatherings. Hundreds of bars in this state have seen their liquor license suspended.

So, despite The Sportsmen’s Tavern ruling, it now sounds like the governor is not backing down from enforcing the state’s coronavirus pandemic guidelines.

So who’s right? Both sides, obviously.

We’re in the midst of a national crisis. More than 210,000 Americans have died of COVID-19. Science-based projections conclude that the United States is likely to add another 100,000 to 200,000 deaths before the end of the year. Limiting throngs of Orthodox Jews and heavy-metal fans, science suggests, will help contain the spread.

In making his ruling on The Sportsmen’s Tavern case, Sedita did not question Cuomo’s intention to protect citizens during a health crisis. Instead, Sedita suggested the state already has what it considers proper precautions in place. “In other words, can an agency of the state government lawfully prohibit a properly licensed bar/restaurant from advertising that it’s offering live music, and can an agency of the state government lawfully prohibit a licensed bar/restaurant from selling tickets to a live musical event?”

Danny Deutsch, owner of Rochester’s Abilene Bar & Lounge, agrees with both points of view. Understanding the seriousness of the health crisis, he has operated his business within the state’s guidelines. And now, he asks, why punish bars and restaurants that were assiduously following social-distancing rules, and not allow them to advertise that they are offering other legal services, such as live music?

“That made no sense,” Deutsch says. “If we’re doing everything correctly, why is it wrong to tell people that we’re doing these things?

“We’re still following the state guidelines, but we’ll be able to tell people what’s going on.”

Critics of the state’s insistence that there be no ticket sales for shows, that any music should only be “incidental,” point out that selling tickets is actually a fine way of controlling the size of a crowd.

One of the problems with issuing guidelines is every synagogue, bar, and restaurant presents a different set of circumstances. Houses of worship fill to different capacities, some bars offer food with the music, some offer just music. Does a plate of hummus qualify as food? Or, as KeyBank Rochester Fringe Festival Producer Erica Fee puts it, how is it that a theater can’t open, but a Halloween haunted house for the kids is OK?

One size does not fit all.

There’s no question that some bars and restaurants have been flaunting the COVID-19 guidelines. Sometimes this is arrogance, sometimes it is ignorance. But it is also fear. Bar and restaurant owners have sunk their life’s savings, their family’s financial well-being, into their businesses. They’ve been encouraged to invest in developing downtown Rochester. Bars and restaurants are an intrinsic part of culture, society, and the free exchange of ideas. Sitting at home, binge-watching a Netflix show, sits far down the ladder of cultural experience.

The downtown Rochester Hyatt Regency announced this week that it is closing temporarily. There’s just no business to support it and those jobs. But corporate entities are more likely to survive the pandemic than small businesses that are seeing less of a federal safety net.

And small, intimate businesses are the core of downtown Rochester’s soul.

Here’s another metaphor for 2020. Think of it as the kind of stress test that architects administer on the buildings and bridges they design. Can these structures stand under the weight they’ll have to carry? Now think of our society’s response, and our leaders’ response, to the coronavirus pandemic, Black Lives Matter demonstrations, and the climate change-fueled fires raging through the West Coast.

Don’t think too long. It’s depressing. On all counts, our society has failed those stress tests.

When will the pandemic end? Let’s start that conversation by going back even farther than Monday’s Cuomo press conference.

Back, back, back to March, maybe even February. When the American public was assured — lied to, actually — that COVID-19 was just a few people coming from China. And it would soon be gone, “like a miracle.” Or perhaps, as Texas Lt. Gov. Dan Patrick suggested in May, American seniors should be willing to risk their lives to the virus to preserve the economy. All throughout the summer we were assured that relief was on the way, vaccines were in development. Try injecting bleach.

We’re donkeys being led on by hydroxychloroquine tied to the end of a stick. Promises made, promises not delivered, no end seemingly in sight.

And then we arrive. President Trump hospitalized with COVID-19. Yet rather than concede that yes, 210,000 Americans have died from this virus, he staged a White House production that cast him as a valiant warrior returning to the fight. With cameras already positioned to record the moment, on Monday evening he stood on the White House balcony, waved, and seemed to struggle for breath. Trying to look resolute, trying to create his own reality-television version of Winston Churchill’s finest hour:

“We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender ...”

Or something of that nature. “Don’t be afraid of COVID” is what Trump actually tweeted. Then he stuffed his protective mask into his pocket and walked into the White House, a super-spreader-in-chief ready to infect the 100 or so people in the building. From cooks to custodians to Cabinet members to Army generals.

So this will not end. The only certainty is uncertainty. The United States is not open for business, it is adrift, its leadership not even open for suggestions. On Jan. 20, perhaps we'll be able to set aside the lies, eliminate the noxious weed, and start the COVID-19 battle over. With a plan on how to save our nation, and our culture. Waging the battle as it should have been fought 11 months earlier.

“But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new dark age made more sinister, and perhaps more protracted, by the lights of perverted science.”

That’s not Trump from the White House balcony, of course. It is Churchill again. His famous “This was their finest hour” speech.

But for us — to quote the final line of “All Along the Watchtower” and Bob Dylan — “the hour is getting late.”

Jeff Spevak is WXXI's arts and life editor and reporter. He can be reached at