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A Brooklyn bar has filed a lawsuit over New York Gov. Andrew Cuomo’s midnight curfew on indoor dining in the city, arguing the measure will not protect customers from COVID-19, but rather harm businesses.
Plaintiff Columbus Ale House, doing business as The Graham, claims that instead of helping an industry that has been declared “essential,” the state has constantly changed its “unworkable” pandemic rules and fined establishments for “hyper-technical violations that did not exist days earlier.”
According to the lawsuit, Cuomo’s most recent order, issued Sept. 9 and expected to go into effect at the end of the month, establishes a “food curfew” that requires New York City restaurants to close by midnight, “despite the fact that coronavirus does not behave as a vampire, infecting others only when the moon is out.”
The Graham says it is struggling to pay rent after Cuomo’s previous pandemic rules to discontinue indoor dining for six months, and now only being able to open at 25% seating capacity.
The bar maintains that in the past, a “substantial amount of its revenue” came in after midnight.
“As a late-night establishment, historically, we serve the service industry, the second- and third-shift employees, everyone from MTA workers to those serving tables at other bars and restaurants,” The Graham owner Tov Lutzker told The New York Post. “Historically, we have made 50 percent of our money after 2 a.m. To set closing time at 12 a.m. specifically just seems to be arbitrary and punitive to late-night establishments.
“What’s the difference between, say, 11 [p.m.] and 1 [a.m.]?” Lutzker continued. “If there is a difference and you can prove it, we can go away quietly. We’ll do just about anything you ask of us that’s reasonable, but this is what really pushed us over.”
The Graham says it faces “extreme financial hardship” as a result of this latest of Cuomo’s pandemic rules.
The bar says the curfew actually makes the situation worse by shortening the hours during which New Yorkers can visit a restaurant, which will lead to more crowding during open hours.
New York City was hit particularly hard by the coronavirus pandemic.
According to the lawsuit, the state had reported nearly 100,000 COVID-19 infections and more than 2,000 deaths by end of March.
“It is no surprise that New York City, with its dense population and close contact in its massive public transportation system, became a hotspot of infections.”
As of the docketing of The Graham’s lawsuit, about “450,000 New Yorkers, or 2.4% of the population, have tested positive for coronavirus … in addition, of course, to those who are (or were) positive but untested.”
The bar says Cuomo’s pandemic rules have been all over the map: Some have been simple and straightforward, such as mask and social distancing requirements, while others have have been “arbitrary, constantly changing, and subject to enforcement before establishments had a chance at compliance, or even required results that were beyond the control of establishments.”
The plaintiff says no study it could find has suggested indoor coronavirus transmission is greater at night than during the day, nor has any study suggested cities implementing earlier restaurant closing times have seen fewer COVID-19 infections.
The Graham also says Cuomo made no attempt to collaborate with people in the industry to find a solution “to whatever problem Cuomo thinks he is solving” with the food curfew.
Restaurants outside New York City have been allowed to have indoor dining at 50% capacity — without the midnight rule, according to the lawsuit.
“The plaintiff’s lawyers are right: this virus is not a vampire — it is real, it is deadly, and the State will do everything we can to protect New Yorkers from it,” Cuomo spokesman Jack Sterne told the New York Daily News. “Bars are closed in 10 other states and many — including Rhode Island, North Carolina, and Washington — have similar restrictions in place because they recognize that late-night service can encourage individuals to gather and mingle, increasing the risk of COVID transmission.”
The Graham argues that Cuomo’s food curfew violates the Fifth and 14th Amendments and Article 78 of the New York Civil Practice Law & Rules.
The plaintiff is seeking declaratory relief stating that the “midnight rule” is unconstitutional and an annulment of the rule; injunctive relief ordering that Cuomo “and his agents” cannot enforce the rule or issue a “substantially similar” rule; court costs and attorneys’ fees; and any other relief the Court deems just.
In related legal news, a U.K. pub curfew may be established in addition to other social distancing guidelines as more restrictions are being put into place to battle escalating COVID-19 cases before winter comes. In addition, a Manchester nightclub owner has filed a lawsuit against the 10 p.m. curfew placed on bars and restaurants.
Do you think New York’s midnight indoor dining coronavirus curfew will make a difference? Let us know your thoughts in the comments.
The plaintiff is represented by Jonathan Corbett.
The Brooklyn Indoor Dining Coronavirus Curfew Lawsuit is Columbus Ale House Inc. d/b/a “The Graham” v. Andrew M. Cuomo, Case No. 20-CV-4291, in the U.S. District Court for the Eastern District of New York.
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