New York Sued for “Blue Law” Against Sunday New Year’s Parties

Summons for Vincent BradleyOnly 50 years ago, there were places in this country where you could not buy non-essential items on Sundays, because it was a crime for shopkeepers to sell them to you.

These laws, called “Sabbath laws” or “blue laws,” existed in the vast majority of states, came in many varieties of Sunday prohibitions, and the traditionally-liberal states in the northeast, such as New York and Massachusetts, were among the last to get rid of theirs in the late 70s. By 1976, the highest court in New York had little trouble concluding that “[t]here is little doubt that these laws are clearly religious in origin…” and striking down the laws in that (and subsequent) challenges. People v. Abrahams, 40 N.Y.2d 277, 281 (N.Y. 1976). The Constitution forbids state establishment of religion, and it is obvious that these laws contravene that “commandment.”

But, laws are struck down one at a time, and for whatever reason, several of New York’s remain unchallenged. One of the remaining ones is this: on New Year’s Day, New York allows its bars to stay open all night long, so long as they are in good standing and submit an application with a small fee. But, if New Year’s Day lands on a Sunday, the law prohibits licenses from being issued by its State Liquor Authority.

Noticing that January 1st, 2023 lands on a Sunday, Brooklyn event venue and licensed bar Eris has filed suit last night, with me as counsel, challenging this law. It may seem trivial, but even small violations of constitutional rights should be remedied, and in fact, this law costs bars and restaurants tens of millions of dollars (not to mention millions of dollars in lost tax revenue) each New Year’s Day — so it is not all that trivial and frankly I am shocked that the industry has not challenged this law yet.

The case is Eris Evolution, LLC v. Vincent Bradley (the current Chairman of the New York State Liquor Authority) and was assigned case number 1:22-CV-4616 in the United States District Court for the Eastern District of New York. I am hopeful that New York will agree to end this practice rather than fight to keep the Lord’s Day enshrined in state law.

Two Courts Destroy NY SLA’s Ban on Advertising and Ticketing Music

Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.

The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?

It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.

“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”

Hearing Transcript (.pdf)

The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.

The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.

NY Coronavirus Curve
New York’s coronavirus curve has been flat for about 3 months. Source.

The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.

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