Under current COVID-19 restrictions, Sean Downing can allow 23 people into Yucca Tap Room for a live performance.
“Do the math,” says the co-owner of the nearly 50-year-old Tempe bar and music venue, which under normal circumstances has a capacity of 165. “We can’t pay the band, pay for alcohol, and pay for staffing with a crowd of 23 people. I’m in the red before I pay the sound guy or my own staff. It is mathematically impossible to run our business like that.”
That's why, after eight months of running a live music venue with no live music, Downing started booking occasional shows in Yucca's parking lot — a massive, block-long football field of concrete that's utilized after dark only by Yucca and the Sky High Smoke Shop next door. The shows have been "lighter, singer-songwriter stuff," Downing says. The initial performance, on Halloween, was an acoustic set from Jason DeVore of Authority Zero.
"That was our first attempt to step back a bit into music," Downing says. "And we did everything by the book, with all the restrictions in place: masks, everybody seated, plexiglass, the whole nine yards. And other than the cost of extra security to make sure everything was in compliance, it was my most net-profitable day since COVID. That was the start of thinking, you know, This can work."
Another show was planned for last Saturday. But a few days before, a Tempe police officer and an official from the city's Special Events office turned up at Yucca and started asking questions about it.
“They said we can’t do it outside without a permit," Downing says, "and also that they're not giving out any permits."
When Downing replied by saying that maybe they'd move Saturday's show inside and limit the capacity to comply with COVID-related indoor regulations and guidance, he says things got "eerie" for a few seconds, then the officials informed him they'd be stopping by to ensure the venue was in compliance.
"My business partner asked what would happen if we weren't found in compliance," Downing says. "And they said they'd consider it criminal negligence and arrest us."
Melissa Quillard, a public information officer with the city of Tempe, says that Tempe PD and the city official stopped by after receiving a "complaint about an outdoor event that was believed to be in violation of COVID-19 mitigation rules established by the Arizona Health Department."
"Not adhering to city, county, and state COVID-19 mandates is a violation of the law," she says. "When responding to complaints, the city and Tempe PD inform businesses of the seriousness of these violations and educate them on solutions. This educational approach will continue."
Detective Greg Bacon with the Tempe Police Department tells New Times that if a citation were given out to Yucca's owners, it would be for a "city code violation of a special events permit." Organizers of a recent Christian music festival held at Tempe Town Lake potentially face up to $2,500 in fines and even six months in jail for a similar offense.
Quillard adds that Yucca Tap Room hasn't obtained a live music permit to put on shows in the parking lot and that Yucca's owners had been encouraged to apply for an "extension of premise," which would allow the bar to expand outdoor seating into the parking lot.
Yucca has since submitted that application and was approved for it on Thursday.
But an extension of premise doesn't permit the kind of outdoor live performances Yucca had been hosting in its parking lot. Approval for that must go through the city's Special Events department. Quillard says a task force in that department reviews such requests, and that, although it's "not currently a flat 'no' for everybody," approval is granted on a case-by-case basis and depends on the applicant's mitigation strategy, what COVID risk phase the state is in, and other factors.
As Downing notes, although Yucca Tap Room serves food and has kept its bar open in compliance with local and state COVID regulations, it's neither a "foodie spot or a neighborhood bar."
"We're a destination," he says. "We're a place where people go to see entertainment. That's the business. Given our size and scope and staffing, I can't make it work without a driving force bringing people in. I need to give people a reason to come down. You don't go to Harkins Theatres to hang out and not watch a movie."
Yucca Tap Room isn't the only Tempe venue that has had its plans for live performances scuttled. The 1,500-capacity Marquee Theatre was also recently visited by Tempe police. According to Quillard, that meeting was regarding the theater's "security plan."
"Marquee has submitted a special event application but it has not gone to task force yet," Quillard says. "The city has not made any decisions regarding the venue."
Management at the Marquee didn't respond to New Times' requests for comment. But the venue has recently postponed several shows planned for this month. Roger Clyne & the Peacemakers concerts scheduled for December 26 and 27 have been pushed to May, when they'll be held "outside in the Marquee Backyard," according to a recent announcement. The Arizona Republic reports that Marquee Backyard shows will be held outside and feature "pods of six to 10 people with each pod spaced six feet apart."
Particularly frustrating for Downing is that he says his bar has gone to great lengths to create a safe environment for guests since COVID arrived in March. Early on, customers had to read and sign a waiver, get their temperature checked, and wear a mask. The bar had a 4-foot plexiglass wrap around it, seating at the bar was eliminated, hand sanitizer stations were installed, and hands-free menus were implemented.
"Anything I could think of," Downing says. "I was trolled for it. Lots of comments from customers about how we're not the same place anymore, we've gone overboard on COVID safety stuff, it's all overkill."
As the state has backed off some of its initial requirements, Yucca has relaxed on the waivers, the plexiglass is down, and the temp checks are for staff but not customers. "We're doing the basic 6-feet-apart thing and abiding by the rules under the executive order," he says. "But the best we can do inside is about 32 percent of capacity."
Even with the bike-rack patio now approved for extension, that's still just another 17 people the bar can serve.
"I get that COVID is a real problem, and I get that the city has to pump the brakes on stuff," Downing says. "I've been spending most of the year trying to navigate all that while trying to somehow break even. It would be different if I had 200 people inside smashing around on a punk-rock stage. In that case, put me in handcuffs. But this is an isolated, private parking lot, with no liquor service in the event area, and we're doing coffeehouse music — which isn't even the kind of shows we usually would do, or know how to make money with.
"But we're trying to do this in a very reasonable way that allows us to survive. And their attitude is, basically, 'Tough luck. It is what it is.'"