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Tuesday, November 28, 2017

Prohibition Has No Place in Modern Law

One part of the cabaret law banned unlicensed bars from playing piano music.

The 21st Amendment ended Prohibition on Dec. 5, 1933. Still, some laws that were enacted to enforce Prohibition remain on the books, binding businesses today with antiquated red tape.

Members of the New York City Council raised awareness of the problems earlier this month when they voted to repeal a Prohibition-era “cabaret law.” But there are more antediluvian edicts that they could reconsider.

A License to Dance

Old statutes may fall into disuse and obsolescence, but savvy lawmen can always pull one off the shelf and surprise someone who is technically an offender.

That’s true even if no one would reasonably know what conduct the statute proscribes, or even agree that such conduct should be a crime – that is, unless and until a court strikes down the law as unconstitutional or the legislature repeals it.

Last year, New York rolled back an 80-year-old law that restaurants and bars cannot sell alcohol before noon on Sundays, giving brunch-goers an extra two hours to imbibe, starting at 10 a.m.

New York City Council members answered that call earlier this month, voting 41-1 to repeal a 1926 cabaret law.

Such “blue laws” were enacted to restrict alcohol consumption on Sunday to encourage piety and church attendance. New York amended its law not only to benefit venues vying for brunch business, but also to reduce other regulatory burdens on small distilleries and wineries.

“There are a lot of impediments to small businesses here in New York,” said state Sen. Patrick Gallivan, a Republican who previously served as Erie County sheriff. Residents thought that some of those restrictions, such as no mimosas before noon, had outlived their moral raison d’etre.

The solution, Gallivan said, is to “continue cutting regulation and red tape on businesses so that they can succeed. This law is just one step, and we have a lot more work to do.”

New York City Council members answered that call earlier this month, voting 41-1 to repeal a 1926 cabaret law. Among other things, it prohibited restaurants and bars from hosting “musical entertainment, singing, dancing, or other form of amusement” without a cabaret license – yes, a license to dance. And only businesses in commercial manufacturing zones could even attempt the costly and complex licensing process.

But there was much more to the convoluted cabaret regulatory scheme than a licensing requirement. New Yorkers had been chipping away at its more draconian requirements for decades.

Cabaret Law’s Effect on Musicians

A 1987 New York Times article called the cabaret law “a concession to the futility of Prohibition.” Ostensibly enacted to control fire hazards and occupancy limits, it also regulated the “moral character of cabaret owners” and musicians, inviting discriminatory enforcement, and offering a blank check for “exerting control over large dance halls and speakeasies.”

One part of the cabaret law banned unlicensed bars from playing piano music until a Queens alderman “fond of old-time melodies over beer” urged amendment to the law.

Ray Charles, Billie Holiday, Thelonious Monk, and Nina Simone, among others were at times barred from performing.

That law also limited the kinds of instruments that musicians could play in unlicensed establishments. For example, string instruments were allowed, but wind and brass instruments were not. In 1986, under threat of litigation from Local 802 of the American Federation of Musicians, the City Council repealed that provision, too.

Between 1940 and 1967, when cabaret performers and employees had to obtain and carry “cabaret cards,” legendary musicians – Ray Charles, Billie Holiday, Thelonious Monk, and Nina Simone, among others – were at times barred from performing. Frank Sinatra rejected the card scheme outright, and wouldn’t perform in New York City while that law was enforced.

After lawmakers, in the 1960s, limited cabaret performances to three musicians at a time, vibraphonist Warren Chiasson said, “[s]ome of the most creative minds in jazz [had] been unable to work.” In 1988, Justice David B. Saxe of the New York state Supreme Court struck down that provision under the First Amendment.

Lawmakers more recently tacked on additional requirements, such as security cameras and guards at large venues.

Arbitrary and Unpredictable Enforcement

It is no surprise that the regulations keep piling up, but it is noteworthy that New Yorkers have accomplished a rarer art of statesmanship – namely, reconsidering the laws already in effect.

Repeal was overdue.

The repeal of the cabaret license restriction was overdue. Only a fraction of New York City’s food and beverage venues had one. “We have horror stories from small business owners of how the law has been used against them,” City Council Speaker Melissa Mark-Viverito said.

While the administration of Mayor Rudy Giuliani aggressively enforced the law in the 1990s, the administration of current Mayor Bill de Blasio has not. Even with lax enforcement of the law, however, The New York Times reported that it “chilled relations between venue owners and the authorities, and drove dancing into unsafe warehouses.”

The owners of establishments, meanwhile, discovered that enforcement could be highly arbitrary and unpredictable.

For example, the owners of one venue did not get a cabaret license, but they were not cited, even after hosting a major event with de Blasio in attendance. Still, one of the owners told The New York Times that “the lack of a license ‘was always a threat hanging over our heads’ … naming venues that had been targeted. ‘Are we next?’ was the big question.”

Now, their customers can dance if they want to.

Lawyer and Brooklyn bar owner Andrew Muchmore, for one, had received a citation after police saw people “swaying” at a rock show.

Moreover, the New York City Department of Consumer Affairs’ cabaret license checklist suggests that obtaining the cabaret license could be a prohibitively complex, costly ordeal. It required approval from the Fire Department, the Community Board, the Department of Buildings, the Environmental Control Board, and various other lawyers and regulators. The application process also involved completing several forms, obtaining various certificates, filing multiple declarations, and, of course, paying a fee.

It was an open secret that some businesses skipped seeking the cabaret license, gambling on lax enforcement and having patrons who would not dance. Now, those businesses can stop worrying. And their customers can dance if they want to.

Not Just NYC

But Gallivan’s point still holds true: Lawmakers have “a lot more work to do” to reduce outmoded “impediments to small businesses.” Of course, the issue is not confined to New York.

Other states, including Michigan, Ohio, and Texas, have also reviewed their codes.

In Massachusetts, for example, state Treasurer Deborah Goldberg has also urged reconsideration of old alcohol laws. “We want to try to anticipate the market, and ask, ‘What does a 21st-century alcohol law look like?’” she said.

Hopefully, this is a sign that other states are ready to begin rolling back stale, outdated laws, making room for more business-friendly policy solutions to these kinds of issues.

Other states, including Michigan, Ohio, and Texas, have also reviewed their codes. In Congress, the House and Senate have reintroduced bills to begin a much-needed review of all federal laws and regulations that carry criminal penalties.

So kudos to the New York City Council. By repealing the cabaret law, New Yorkers again proved that reviewing antiquated red tape can be a bipartisan undertaking – one that helps preserve a healthy balance between protecting public safety and helping businesses and their communities prosper.

Reprinted from the Daily Signal.

  • John-Michael Seibler is a visiting legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.