City Planning Proposes Elimination of Zoning Restrictions Against Dancing and Muisc.
As part of the initiative of Mayor Adams announced in June 2022, the Department of City Planning has proposed the elimination of the restriction against dancing in Use Group 6 initiative as announced in May 2023 as Proposal 8 to the City of Yes initiative.
• Proposal : For businesses with maximum occupancy under 200 people, dancing , comedy, and musical acts with posted show times or cover charges would no longer be prohibited in zoning.
Although DCP is to be commended for this proposal, and for also remedying restrictions against dancing, the proposal text ignores the elephant in the room: the State Liquor Authority in collaboration with Community Boards have routinely prohibited dancing and live music in venues located in districts that currently allow dancing and live music. DCP pays lip service to the problem by noting that SLA regulation continues to exist by stating:
Venues would still be subject to permitting by other agencies , such as DOB, SLA, and FDNY.
This is not a completely true statement: venues remain subject to the arbitrary consent of Community Boards. The Department of City Planning proposed to resolve only part of the problem of over-regulation of dancing and music. It cannot wash its hands of the problem for the City, and not the problem for DCP. Further, DCP has avoided providing the analysis of the venues where dancing and live music are allowed, but are prohibited by the SLA/Community Boards, so as to allow City officials to boast of its minimal step forward.
[News: We have completed a further analysis of the NY State Liquor Authority (SLA) license database. The analysis shows that merely modifying zoning will not resolve the problem of excessive regulation of dancing and music in New York City as a result of over-regulation by the SLA in collaboration with Community Boards. See a discussion of SLA and Community Board regulation. ]
Despite the repeal of NYC’s Cabaret Law in 2017, the City and State of New York continue to regulate social dancing in venues using zoning laws, building codes, fire codes, and liquor laws.
Mayor Adams has announced a new initiative to reform the zoning laws including reform of provisions relating to dancing. This announcement follows a resolution proposed by the City Council in 2021 to encourage the Department of City Planning to study the issues of zoning dancing reform. The resolution follows on complete inaction from 2017 to present.
Whether the new initiative will deal with troublesome issues of regulation by the State Liquor Authority in coordination with Community Boards and the elimination of restrictions relating to live music etc. remains to be seen.
None of these regulations define dancing – late night rave dancing with 500 participants is regulated in the same manner as social dancing such as Salsa, Lindy Hop, and Tango with no more than 25 couples dancing at a time.
At the time of the repeal, it was recognized that these other regulations would require revision in order to eliminate onerous regulation of dancing in New York City.
The existing restrictions against dancing in the Zoning Resolution were introduced in 1989 in response to two court decision, Chiasson I and Chiasson I, declaring that restrictions in the Cabaret Law and the Zoning Resolution against live music were unconstitutional. The 1989 changes removed some of the restrictions in the Zoning Resolution as to music, but then added other restrictions as to waiting areas, set times, and entrance fees, which served to inhibit live music. At the same time, though not implicated in the Court decisions, restrictions were added prohibiting dancing in Use Group 6, perhaps anticipating future court challenges. The current rezoning initiative will hopefully remove “dancing” as a factor in zoning.
In 2007, dancers against the cabaret law did initiate challenges to both the cabaret law and the zoning regulations, but the New York courts rejected the challenge, holding that “Recreational dancing is not a form of expression protected by the federal or state constitution.” Festa v. NYC .
In 2016, a bar owner and New York Attorney, – Andrew Muchmore -, challenged the constitutionality of the cabaret law in an action in the United States District Court in the Eastern District of New York. Judge Roslynn R. Mauskopf issued a Memorandum and Order not dismissing Muchmore’s complaint.
Nonetheless, the City settled the case agreeing to dismissal, but paying attorney’s fees to Muchmore. This meant that the Festa ruling that the restrictions were constitutional was not overturned. Judge Mauskopf’s Memorandum is an extensive discussion of the issues relating to dance regulation, and discussed issues far outside the pleadings of the City and Muchmore. For example, her Memorandum extensively discusses the ambiguity of the word “dancing” as used in the Cabaret Law and the Zoning Resolution.
At the same time, the City administration agreed to support the repeal of the cabaret Law. The repeal was deficient in expanding dancing, since the repeal ignored the zoning and regulation by the State Liquor Authority in collaboration with Community Boards.
The repeal of the Cabaret Law was deficient because it ignored the burden of zoning and other regulations and the dubious heavy handed regulation of the New York State Liquor Authority. As one commentator reported in November 17, 2017 just after the law was repealed to the self-congratulations of the politicians in an article “Cabaret Law Repeal Lets New York City Dance – As long as you are zoned for it.”
The sponsor of the repeal, clearly understood the limitations of the repeal, as the 2017 article states: “Espinal added that he is looking forward to working with the office of nightlife and advocates ‘to explore our city’s archaic zoning code to see how we can build on this progress.'” Nothing has changed since 2017.
There are other regulatory barriers, as the article notes: “Even with a repeal of the Cabaret Law, New York City establishments wishing to host music performances and dancing still must hold the various other permits needed from, for example, the city’s health, buildings and fire departments, as well as the state liquor authority.”
In 2017, rather than address the issues involved, the City Council provided for the creation of an Office of Nightlife and a Nightlife Advisory Commission to study the issues, kicking the can down the road.
Nothing has changed in 2018 and 2019 and now in 2022 – the same zoning and building code burdens still exist. The Department of Building has yet to its withdraw its March 2017 Guidelines that describe the regulation of dancing and cabarets. The Department of City Planning has not indicated an interest in revision of the Zoning Resolution (the City’s zoning code, except in the recent response to Mayor Adams.
As for zoning regulations, amendments to which are administered by the Department of City Planning, the nub of the problem is that the Zoning Resolution allows dancing only in areas of the City which permit Use Group 12 uses. Most City districts do not allow Use Group 12 uses. This was recognized by commentators and supporters of repeal.
Even where dancing is permitted under Use Group 12, an appropriate certificate of occupancy must include Use Group 12 although there is confusion on this issue.
Further, state liquor licenses are revocable by the New York State Liquor Authority (SLA) if an activity such as dancing occurs without a certificate of occupancy and license Method of Operation which specifies dancing. This is the true Elephant in the Room. Mayor Adams has now announced that the zoning resolution would be looked at, but, really, it is not going to help very much without getting control of the SLA. Even now, venues in Use Group 12 districts do not openly offer dancing because dancing is not included in the venue’s Method of Operation. Dancing is “sub-rosa” for those venues, and other venues just will not take the risk of liquor license revocations.
As an example of the zoning illogic, north of 126 Street in Harlem on Lenox Avenue, Use Group 12 is not designated, and dancing may not take place in bars and restaurants and other venues. This means that the world-famous Sylvia’s restaurant could not allow late night patron dancing of the Lindy Hop in its venue between 126th and 127th Street.