Two Hills "Reloaded" performed at Sportmens on Sunday, 10/11.

Music wins a round

On August 31, LSS reported on the problems restaurants that feature live music are facing. Even when the elaborate state policies governing social distancing in restaurants are followed, music must be "incidental to the dining experience and not the draw itself," and venues are prevented from “listing, promoting, or advertising music presentations.”

A sporting chance

Buffalo’s Sportsmens Tavern filed a lawsuit against the New York State Liquor Authority (SLA), challenging the rules pertaining to live music performances. According to the lawsuit, Sportsmens Tavern has "remained in compliance with the reopening guidelines, including having tables separated by six feet; requiring employees and patrons to comply with masking requirements; cleaning and sanitizing tables, chairs, restrooms, stages, microphones, and other high-traffic areas; and requiring performers to maintain twelve feet of separation from patrons." The venue also provides a separate entrance and dressing room for performers, taking each musician’s temperature, and ensuring that musicians maintain a distance of at least twelve feet from patrons while performing—all in compliance with state mandates.

Attorney Paul Cambria represented Sportsmens Tavern.  That’s where the story left off.

The verdict

On Wednesday, September 30, Sportsmens prevailed over the SLA.  Judge Frank Sedita III based his ruling upon constitutional law, agreeing with Cambria that the regulations were “excessive” and “irrational.” The important thing is that venues are “enforcing occupancy limits, cleaning, disinfecting, mask wearing and social distancing.”

Defending the state, Joel Terragnoli claimed that Sportsmens was doing “an end run around the current prohibition on the operation of show and other entertainment venues by operating its bar and restaurant as a concert hall." However, in his ruling, Sedita said, "This case is not so much about ensuring public safety as it is about the permissible limits of state power to regulate the speech and the conduct of its citizens." Though he acknowledged that the intent of Governor Cuomo’s policies is to protect citizens from the effects of the pandemic, he said "the government, even in the context of a health crisis and even when led by someone with noble motivations, does not wield unlimited power."

The fear that Sportsmens would just become a concert hall if it advertised and sold tickets was not found to be credible. Sedita pointed out that ticketed sales help enforce state regulations by controlling the number of occupants and assuring that they will be assigned to properly distanced seating.

Strong-armed by the SLA

According to one source close to the plaintiff, but not connected with Sportsmens, “It took less than three hours for the SLA to have local agents fan out and threaten other venues.” The source says that field agents were claiming that the ruling was specific to Sportsmens alone and does not apply broadly. Ironically, the same family that owns Sportsmens also operates The Cave, a venue aimed at younger audiences, located on the same property. The SLA informed them that the ruling does not apply to that venue.

What’s next?

Cambria will be making a motion with the judge regarding the wording of the judgment. It’s the hope of the plaintiff that the new language more clearly states that the constitutional argument is universal, based on the constitution.

If the judge clarifies the language so the ruling clearly applies to all venues featuring music, it seems all but certain that the SLA will appeal. “It is essential that the judgment reflect universality,” says my source. “It’s only then can we reach beyond the Buffalo area to raise money to pay massive legal bills.” Legal fees have already reached $40,000 and are expected to approach $100,000 if there is an appeal.

Pandemic: a lesson in variation and cause

Wednesday, October 7: the headline in the New York Times read, Cuomo: 0.9% coronavirus test rate 'a good number for Western New York.' The first line of the article states, “During a week dominated by talk of ‘hot spots’ in New York State, Wednesday's coronavirus numbers were markedly better for Western New York.”

It was our lowest daily positive rate for COVID-19 in more than a week. It contributed to a seven-day positive test rate of 1.2%. The overall rate for the state was 1.26%, so we were about average.

Hot, hot, hot

The hot spots mentioned in the New York Times article are in the boroughs of Brooklyn and Queens. They had a combined test rate of 5.1%. Back in early September, WNY was being scolded for its state-high of 1.7%. In a September 7 LSS article, I presented several reasons for our higher numbers, explaining that it might just be “a natural variation within a controlled system, and other communities will likely experience the same over time.”

That second part has proven true. This week, we are tied for fifth among ten regions, with four having higher rates. The same day that WNY was being patted on the head for its .9% rate, a news story on the WGRZ website proclaimed Western New York mask mandate compliance high. This echoes another line from my September 7 article: “It stretches credulity to believe that, across the entire state, Western New York alone has relaxed compliance with mask-wearing, distancing, and hand-washing.”

And yet

One day later, on October 8, an article on WIVB had the headline: Governor warns WNY to get infection rate down. A single-day uptick in hospitalizations and a new test rate of 1.4% had the Governor cautionary us to “do better.”

What’s wrong with this picture?

W. Edwards Deming was a celebrated engineer, statistician, professor, author, lecturer, and management consultant. One of his guiding principles for managing any system—which would include state systems—is to eliminate numerical goals. Governor Cuomo is fixated on an arbitrary state goal of “under 1%” infection rate. New York State has largely achieved that goal, but we may not always be able to, and we will never succeed equally in every region. That’s certain. Someone will always be on the top and bottom of infection rates.

Statistics 101

Statisticians know there are two possible kinds of variation in any system: common cause, random and expected, and special cause, something identifiable in a system not in control. The only way you can find out which type of variation you’re seeing is to apply statistical analysis using a control chart. If the variations are within plus or minus three standard deviations of the mean, the system is in control and they are common cause.

I’m not a statistician; I just play one on Long Story Short

It would be easy enough for a real statistician to gather the data and create a control chart. Then, if WNY or any region falls outside the control limits, that would be a special cause variation, and you would need to address it. Common cause variations are naturally inherent in a controlled system.

I’m willing to bet dollars to doughnuts that Governor Cuomo has not done this. I’m also willing to bet that the variations we see from week to week, and region to region are common cause. In other words, Cuomo is doing a good job keeping the New York system in control, and the variations occurring are what would be expected. Telling people in a controlled system to “do better,” or to strive for an arbitrary 1% goal, just leads to frustration and demoralization. If, on the other hand, New York has a special cause problem, you need to identify and address it, but you won’t know unless you chart the data.

Two special causes

I see two possible sources of special cause variation. The first is nature. Scientists have been telling us to expect numbers to climb dramatically as we enter colder weather. When it happens (and it might be starting already), will the Governor punish the citizens of New York for what is not within their control?

The second special cause is stakeholder attitudes. Everyone in the state is not working toward the same goal. While the Governor and many politicians and citizens consider keeping infection rates down to be the primary objective, there are a good number of people who believe reopening businesses should be the motivating goal or just don’t care either way. These attitudes are at cross-purposes. In business, you can fire workers who aren’t focused on the goal of continuous improvement. With a state’s population, you have to work around them.

In either case, it’s a certainty that Gubernatorial chastisement will not inspire improvement. Instead, it will likely only sow dissent among the faithful.

Collins’ COVID concerns

Someone is not totally unhappy that we’re having a pandemic. That’s former Congressman Chris Collins, who was convicted of insider trading, and has had three postponements of his sentence due to concerns over pandemic outbreaks in prisons.

His latest check-in date is tomorrow, Tuesday, October 13, but his lawyer is arguing again that, at age seventy, with pre-existing health conditions, Collins is especially susceptible to contracting the virus, with dire consequences.

The big irony

Conservative Republican Collins was Donald Trump’s first and steadiest supporter for his run for president in 2016. On Tuesday—the day Collins was asking for another delay—Trump posted a video directed at seniors in which he downplayed the seriousness of COVID-19. “We’re taking care of our seniors,” he said. “They like to say, ‘the vulnerable,’ but you’re the least vulnerable, but for this one thing, you are vulnerable. So am I. But I want you to get the same care I got. You’re going to get the same medicine, and you’re going to get it free—no charge.”

As a staunch Trump supporter, that should come as quite a relief to Collins, a multi-millionaire. So, who does his lawyer quote in his bid for another postponement? Left wing liberal Elizabeth Warren! Collins’ legal team cited a letter co-signed by Warren which states, "You must do more to protect Bureau of Prisons staff and vulnerable inmates from infection due to the coronavirus. Too many have died, and too many are suffering needlessly." Something tells me that Collins would not have taken up this cause if it didn’t impact him directly.

Collin’s lawyer is asking that the incarceration date be moved to December 8 (as if the pandemic will be over by then), or they say it would be just fine with them if Collins served his sentence in his lavish home. That’s a sentence we are all sharing.

The prosecuting attorney disagrees

Audrey Strauss, acting U.S. Attorney for the Southern District of New York, filed a letter telling the judge in part, "It is time for Collins to begin his prison sentence." She says the protocols put in place to screen for the virus have proven successful. “Over the past six months, not a single case of COVID-19 has been detected among the general population of prisoners at FPC Pensacola and the BOP’s screening procedures have been able to cut off potential entry points for the disease.”

It’s down to the wire. We might know today whether Collins will be checking in to prison tomorrow.

Tipped trash tumbles down

You know those signs on Thruway entrances and exits with the silhouette of a truck tipping over? They’re there for a reason. It was just this past August that we reported a tractor-trailer had crashed through the guardrails on the elevated part of 190 West and burst into flames while the driver leapt to safety. It was like something out of an action movie.

The comedy version

This past Thursday, a privately owned sanitation truck traveling from the Skyway to the 190 tipped on its side, falling lengthwise onto the concrete barrier, and dumping its smelly contents onto three cars parked on Pearl Street below. Pictures and video of the accident show garbage piled onto the unfortunate cars, with more hanging from the truck. The trash also knocked down two light posts. Unfortunately, one of the cars had a sunroof, which gave way under the impact, filling the car with household garbage. The accident is under investigation. The driver could face charges.

But seriously

This isn’t funny to the people who had their cars damaged, or to drivers who were delayed while the exit was closed. And the private sanitation department owners surely aren’t laughing. But haven’t we seen countless scenes like this in movies, and even insurance commercials? It’s got all the ingredients of comedy gold. Wouldn’t this make a nice addition to the Farmers Insurance Hall of Claims?

Seen it; covered it.

Long Story Short is an opinion column by artist and educator Bruce Adams, a longtime contributor to Buffalo Spree.

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