Musicians playing at Blue Note Jazz Club in 2012. The venue plans on reopening in less than two weeks. (Photo: Ionianblue via Wikimedia Commons)

In an event listing seemingly written with a wink and a nod, City Winery, a music venue and eatery in Chelsea, invites customers to a Thursday evening of “incidental music.”

The listing on Resy, a website where diners can make reservations at restaurants, insists that “THIS IS NOT A TICKETED EVENT,” despite attendees having to specify how many “tickets,” according to Resy’s wording, they would like to reserve for the 8:15 p.m. showing of “something special on stage.”

In normal times, this probably wouldn’t be the best way to attract an audience to what might have been called a concert. However, a pandemic isn’t normal, and a handful of music venues in the city are tiptoeing around restrictions on restaurants and bars designed to curb the spread of coronavirus, all while trying to stay afloat during an unprecedented economic downturn.

The legalistic maneuverings of some of the city’s performance spaces are in response to guidance in late August from the State Liquor Authority (SLA) that allows “incidental music” at restaurants and bars but prohibits “ticketed and/or advertised shows.” 

What this means in practice is unclear, and venues are creatively interpreting the rules, even as a second wave of Covid threatens the metropolitan area.

Michael Dorf, founder and CEO of City Winery, insists that City Winery’s listing on Resy is merely a reservation. “There’s no charge for a ticket or even a charge for the reservation, which is what some of our colleagues are doing out there,” he said in an interview over the phone. (Customers merely need to buy food and a drink, “to comply with New York City regulations,” according to the event listing.) He drew a line in the sand between his venue and others that sell all-inclusive dinner packages that happen to be accompanied by a named artist.

Blue Note, a decades-old jazz club in Greenwich Village, is planning on reopening after Thanksgiving and is employing the “dinner package” strategy. The venue’s website and promotional materials for November 27, for example, emphasize headliner Maurice “Mobetta” Brown more than the prix-fixe dinner, which costs over $100 depending on how many people are included in the dinner package.

“We’re selling dinners, and the artists will be performing on stage during dinner,” rebutted Steven Bensusan, the owner of Blue Note, in a phone interview. “That’s in compliance with the code put before us right now.”

Similarly, Drom, a venue in the East Village, is selling a $30 package for November 19 that grants diners a hot or cold “mezze” with a beer or wine and the opportunity to incidentally listen to Silver Arrow Band, an ensemble that’s played with Jay-Z and Janelle Monae, among others.

“I don’t think there is any difference [between] selling show tickets and/or dinner tickets if you are careful with the rules inside of the restaurant,” Serdar Ilhan, the co-owner and director of Drom, wrote in an email. 

Unsurprisingly, venues in the city and beyond have chafed at what they see as arbitrary regulations. The New York Independent Venue Association (NYIVA), a trade organization that represents performance spaces across the state, has spent the past few months campaigning against the SLA’s guidelines. “Forcing us to engage in this minutia is profoundly wrong when the SLA should just be having a dialogue with us,” said Jen Lyon, one of the association’s co-founders, in an interview.

However, debates surrounding “incidental music” may be moot after a federal court temporarily struck down the clause prohibiting ticketing or advertised music at restaurants and bars last week. The judge wrote in the November 13 decision that the distinction between incidental and ticketed music was “arbitrary.” 

Asked for comment on the city venues’ ambiguous take on incidental music, William Crowley, a spokesman for the SLA said that “it is unconscionable that businesses would attempt to undermine proven public health rules as cases increase across the country and throughout New York. The SLA is considering all options regarding this ruling, including an immediate appeal and stay.”

In the short term, the court order hasn’t influenced venues like City Winery or Blue Note, both of which are reopening out of necessity and playing it safe by trying to conform with earlier state guidance. Bensusan, the owner of Blue Note, said that the timing of the decision and the jazz venue’s comeback is coincidental.

While he’s worried about the rise in cases citywide, he doesn’t have much choice. “We have staff that can’t survive right now, if they don’t start working.”

Blue Note is not alone in its financial precarity. In late October, NYIVA reported that of approximately 70 venues it surveyed, about half anticipated closing permanently in the next three months without aid from the state or federal government. The trade organization said the survey sample represented about one-third of the industry statewide.

City Winery is also teetering close to shuttering its doors, says Dorf, the venue’s owner, and he’s frustrated that conversations between the state and affected venues have focused on legal quibbles rather than on aid for ailing businesses and better, safer policies. He’s even introducing rapid testing—for a $50 fee—at upcoming events.

“We can actually be opening New York smarter, which is really what we want,” he concluded in exasperation, “and not have some sort of Talmudic discussion about the word ‘incidental.’”