by Patrick Lakamp – The Buffalo News
The legal ping pong over the restaurant and bar curfew appears finished with a judge’s ruling Saturday that kept it in place.
The ruling comes from State Supreme Court Justice Timothy J. Walker, who had previously sided with about 90 Western New York establishments that sued over the curfew. In February, he granted them a temporary restraining order and then weeks later a preliminary injunction allowing them to stay open past the pandemic-related curfew. But within weeks of each of those rulings, an appellate court reinstated the curfew. And now, Walker has declined to grant the businesses a permanent injunction that would have again kept the state from enforcing the curfew against the businesses.
During a court hearing Friday, Walker acknowledged “this roller-coaster ride within the legal system” over the curfew.
He also took note of the seriousness of it all, where in the Buffalo Niagara region one of every five jobs at local bars and restaurants still hasn’t come back since the pandemic first hammered the leisure and hospitality industry over a year ago.
“It’s not lost upon the court what this is doing to the businesses, and not only to the businesses, but to the folks making minimum wage and maybe a little bit more than that now trying to make ends meet,” Walker said. “We’ve got foreclosure issues. We’ve got eviction issues. The housing market is upside down. The rental market is upside down. Landlords are afraid to rent because they don’t know what’s going to happen. I don’t want that lost on anyone for a moment, or anyone thinking this court is not mindful of that.”
The curfew was 10 p.m. when the businesses first sued in January, then later extended to 11 p.m., and as of Monday it will be midnight.
Having allowed the establishments to remain open until 11 p.m. shows that state officials believe the public health protocols are working at the establishments, said attorney Paul Cambria, one of the lawyers for the bars and restaurants.
Servers must wear masks. Customers have to be seated 6 feet apart, and they have to wear masks when they’re not seated at their tables, he told the judge during Friday’s hearing.
“They are saying that restaurants can be open until 11, and obviously that means they think these health protocols are sufficient,” Cambria said.
So how can the state justify an 11 p.m. curfew, or even a midnight curfew, Cambria asked Walker.
“It’s still baseless,” Cambria said of the curfew. “No science for it. No facts for it. Zip.”
Earlier this month, the state ended the curfew for movie theaters, casinos, bowling alleys, pool halls, gyms and fitness centers, said Corey Hogan, another lawyer for the restaurants.
“To our knowledge, there is no other business in New York other than restaurants and bars that now have a restriction as to how long or what their hours can be,” Hogan said.
State health officials cite Centers for Disease Control and Prevention guidance that labels indoor dining in bars and restaurants a high-risk activity because Covid-19 spreads more easily indoors.
“You cannot eat and drink masked, and that really is the fundamental difference between restaurants and the other businesses – billiards halls, various things where the curfew has been lifted,” Assistant Attorney General Ryan L. Belka told Walker.
“You can continue to perform those activities while having a mask on. You cannot do that while eating and drinking.”
What’s more, drinking in a bar or restaurant can encourage congregating and mingling, particularly late at night, which furthers the risk of spread, he said.
The lawsuit sought to undermine the state’s pandemic response designed to mitigate the significant risks of Covid-19 transmission posed by indoor dining, according to the state’s court papers.
The pandemic has killed more than 50,000 people in New York State, and the threat is far from over, as thousands of New Yorkers remain hospitalized, Belka said.
And it remains unclear what kind of havoc the new variant strains will wreak, Belka said.
Since the two sides last appeared before Walker 49 days ago, “variants which were only a specter on the horizon are now here in Erie County,” Belka said Friday. “The UK variant had just been discovered here but now the California, UK, South Africa and New York variants have all been found here in Erie County.”
Still, Hogan scoffed at the claim that patrons would violate health protocols “when the magic hour strikes 11 or 12.”
The state has offered no proof of that, he said.
The only contact tracing data released by the state, revealed late last year during a briefing by Gov. Andrew Cuomo, indicated restaurants accounted for 1.4% of Covid-19 spread, Hogan said.
“The best evidence would be the contact tracing data,” Hogan said. “The state has failed to provide us with any additional information there even though they’re the only entity that has that. They possess the evidence that would support any of their restrictions.
“It seems pretty clear that the state has nothing that could support their position from a scientific basis,” Hogan said.
But it wasn’t the arguments over contact tracing, variants or late-night drinking that formed Walker’s ruling.
On March 7, the New York State Legislature passed legislation that replaced the laws that previously served as the legal underpinnings for Cuomo’s executive orders that imposed Covid-19 restrictions. The new legislation created a new process for issuing executive orders.
The restaurants’ lawsuit is based on the previous law.
“The former executive law has been repealed, meaning the petition challenges a law that no longer exists,” Walker wrote in his ruling.
“Accordingly, the petition has been mooted, because the restaurant/bar petitioners’ ability to operate will not be affected by any view this court might express on the merits of the constitutionality of the state’s response to the pandemic under the former executive law,” Walker wrote.
The lawsuit “seeks a permanent injunction preventing (the state) from enforcing a former law which has no effect,” the judge ruled. “Any ruling by this court as to (the state’s) actions under the previous version of executive law would amount to an advisory opinion on a nonexistent statute.”