Community Boards Ignore Chiasson Decisions Declaring Music Restrictions as Unconstituional

The New York City Community Boards in cooperation with the State Liquor Authority have ignored the decisions of Chiasson I and Chiasson II in in  1986 and 1988, implementing restrictions against live music declared as unconstitutional. Although the City amended its Zoning Resolution in 1990 reflecting the Chiasson decisions, the SLA and Community Boards have acted as a superseding zoning authority overriding the Zoning Resolution.

For example, all restaurants in New York City serving alcohol are by definition allowed only in Zoning Use Groups 6 or Use Group 12, which specifically allow live music.  Yet the SLA in cooperation with Community Boards explicitly disallow live music in 1032 establishments (as of March, 2023 database), and implicitly disallow live music in the 4400 venues where recorded music is allowed, but not live music, and in total disallows live music in 9134 establishments.

These restrictions are explicitly conflict with the restrictions against music considered unconstitutional in the Chiasson cases, as well as just plainly disregarding the Zoning Resolution.

Some believe, incorrectly, the the City has no control over the State Liquor Authority, but this ignores the fact that the City police department, 311 system, and Building Department actively work with the SLA in enforcing limitations in liquor licenses.

The SLA actively participates in M.A.R.C.H. to enforce the Method of Operations provisions. M.A.R.C.H. is a program managed by the Mayor’s Office with the N.Y.P.D. and DOB as partners.  The Community Boards are also entities of the City and collaborates with the SLA.  DOB enforces the Zoning Resolution. Many of the music restrictions in the SLA Methods of Operation are in conflict with those decisions. The Chiasson decisions are discussed in Professor Chevingy’s book, Chevigny – Gigs: Jazz and the Cabaret Laws in New York City. The Chiasson cases were brought by Local 802 of the Musicians Union.

The following excerpts from the Chiasson decisions against the City of New York illustrate the disregard of statue and decisions by these entities:

Chiasson v. New York City Department of Consumer Affairs, 132 Misc. 2d 640 (N.Y. Sup. Ct. 1986) (Chiasson 1).

“Plaintiffs are three individuals and a musician’s union, who work and thrive within the jazz community of New York City. Warren Chiasson primarily plays the vibraphone; Mark Morganelli plays the trumpet; Carol Cass is a jazz singer; and Local 802 of the American Federation of Musicians is a craft union which has members who play wind, brass and percussion instruments. These plaintiffs have brought a declaratory judgment action to challenge the constitutionality of a New York City ordinance and a zoning resolution which they contend is arbitrary and infringes upon their constitutionally protected right to freedom of expression.”

“Incidental musical entertainment is defined as that which is provided “either by mechanical devices, or by not more than three persons playing piano, organ, accordion or guitar or any stringed instrument or by not more than one singer accompanied by himself or a person playing piano, organ, accordian, guitar or any stringed instrument”

A similar distinction is contained in the New York City Zoning Resolutions.

There are essentially two portions of these laws which plaintiffs challenge: that which limits the number of musicians to three, and that which restricts the type of instruments. It is clear that defendants have simply failed to set forth what, if any, substantial governmental interest is furthered by refusing to permit percussion, wind, and brass instrumentalists to play in unlicensed clubs

The definition of incidental music as contained in the Administrative Code and New York City Zoning Resolution which restricts the type of instruments to only guitar, piano, organ, accordion or any string instrument is unconstitutional.”

Chiasson v. NYC Dept. of Consumer Affairs, 138 Misc. 2d 394, 524 N.Y.S.2d 649 (Sup. Ct. N.Y. Co. 1988)(Chiasson II).

I denied the motion seeking a preliminary injunction limiting the number of instruments permitted to be utilized and found that there may well have been a legitimate governmental objective to that portion of the ordinance. I denied the injunction because the plaintiffs failed to meet their burden of proof as to the numerical limitation; I did not reach a final determination that the numerical limitation contained in the law was constitutionally valid.

The city provides no studies or other evidence to demonstrate that the number of musicians bear any relationship to automotive or pedestrian traffic. In fact, it is the city’s position that it need not come forward with a substantial factual basis to support a justification for the three-musician limitation. I find that the City of New York has failed to meet its burden in demonstrating any legal basis to justify a three-musician limitation.”

Notwithstanding these adverse decisions , now over 25 years later, the City of New York through its Community Boards and police departments, continue restricting music played in New York City eating and drinking establishments by limiting the number of musicians and types of musical instruments, and implicit styles of music. Moreover, those decisions are clear that there are no legitimate distinctions to be made between live and recorded music. The City has accomplished this unconstitutional activity by allowing its Community Boards to impose stipulations or threaten stipulations requiring liquor license applicants to agree to the very type of unconstitutional requirements to be included in the Method of Operations applicable to licenses and then approved and enforced by the State Liquor Authority.  Further, the NYPD then supports the SLA in enforcing the Method of Operation requirements in licenses.

The Community Boards and the SLA moreover, in certain licenses, explicitly  ignore the specific types of music restrictions declared unconstitutional in the Chiasson cases. Following are examples of Method of Operation restrictions in existing SLA liquor licenses.