State federal courts uphold New York’s 10 p.m. curfew on native information

NEW YORK – New York bars and restaurants must continue to close at 10 p.m. after an appellate judge obeyed a lower court order on Wednesday to allow them to operate past the state-mandated closing time.

A federal judge also ruled Tuesday that the curfew related to the state’s coronavirus is constitutional.

Associate Justice Patrick H. NeMoyer of the Fourth Appeals Division of the Rochester State Supreme Court, Rochester, upheld a restraining order from a Supreme Court Justice of West New York that allowed 91 restaurants in Erie and Monroe counties to file a lawsuit to file against the curfew of Governor Andrew Cuomo after 10 p.m.

The lower court decision remains in place, but if the appellate judge maintains the state chief judge’s decision, it essentially means that the lower court’s decision is not enforceable until further court action is taken.

Cuomo’s rule stipulates that state restaurants that are 50% indoor serving outside of New York City are no longer allowed to dine on-site between 10:00 PM and 5:00 AM. The facilities may later remain open for take-away and delivery.

“Let the plaintiffs-petitioners in this court give cause … why not order an order to overturn or amend the Supreme Court injunction issued February 5, 2021 in Erie County,” according to the judgment of NeMoyer on Wednesday.

A virtual hearing is due to take place on February 16 at 1 p.m. to allow petitioners to argue or appeal.

Wednesday’s ruling came less than a day after Federal Judge Paul A. Crotty of the U.S. District Court for the Southern Borough of New York denied a Manhattan restaurateur’s motion for an injunction against Cuomo’s Nov. 13 order, a nightly curfew to impose the nationwide bars and restaurants close at 10 p.m. every day and prohibit indoor dining in New York City.

The owner of Seaport House, a restaurant in the county’s Seaport District, argued that Cuomo’s order violated the procedural clause of the 14th Amendment by denying a person’s “life, liberty or property” and freedom of assembly.

“… According to the Supreme Court finding in the 1905 case, Jacobson v Massachusetts must be given significant credit to state and local authorities in combating the COVID-19 pandemic,” the Crotty said on Tuesday. “(Cuomo and Defendants) argue that food policy is a necessary public health measure against the COVID-19 pandemic and that the public interest factor therefore weighs the grant of injunctive relief.”

Cuomo lifted the city’s indoor dining regime last week. Indoor dining resumes on Friday in New York City. The curfew at 10 p.m. is in place.

The governor implemented the rules last fall to contain the spread of COVID-19 before the expected virus peaks after the Christmas season, which began with Thanksgiving on November 26th.

In the bars and restaurants in the hinterland, it has been permitted since June to operate indoor restaurants with a capacity of 50%.

Representatives from Cuomo’s office referred to the court rulings after asking for comment.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said Tuesday that state officials should lift the curfew as the pandemic has shown restaurant and tavern owners that they can work safely and comply with state COVID-19 instructions at all times.

“The curfew for bar and tavern owners is currently far more harmful than the 50% capacity restrictions,” said Wexler. “The state has allowed us to manage (capacity limits) well, but at 10 a.m. – crap! Lights out.

“During the hours we’re allowed to be open, the state allows us up to 50 percent capacity, and our customer demand largely matches the demand from our customers at 10 a.m. is somewhere north of zero, but our legal ability to serve is Zero. “

For the most part, restaurants have not reported requests outside of 50% capacity as some customers feel comfortable and secure dining indoors, but others still prefer take-away or delivery orders.

Bar and restaurant owners feel the capacity pressure on special occasions like the Super Bowl on Sunday or Valentine’s Day this weekend.

Restaurants, bars and similar businesses are experiencing ongoing financial difficulties due to the coronavirus pandemic. According to the National Restaurant Association and preliminary data from the US Census Bureau, restaurants recorded nationwide sales of just $ 30 billion last April, a decrease of more than $ 116 billion between March and June 2020.

Sales rebounded, but remained $ 18 billion below pre-COVID-19 sales by the summer.

Restaurant owners filed lawsuits against Cuomo and the city because both dining policies affect their livelihoods and the restaurant industry.

“You have suffered significant sales losses and run the risk of closing the store permanently,” says the lawsuit.

“The real injuries suffered by plaintiffs in this case are the significant loss of revenue caused by the COVID-19 pandemic and its associated restrictions,” said Crotty’s ruling. “With the majority of New Yorkers choosing to play it safe and dine at home during the pandemic, restaurants across the state – and particularly New York City – have suffered significant revenue losses. These injuries are palpable; its importance is not lost in this dish. But as far as the law is concerned, the injuries suffered by the plaintiffs constitute financial damage that is not grounds for an injunction. “

Cuomo has argued that the curfew will prevent patrons from staying out long and consuming alcohol in public, reducing the chances of them complying with state mask and socially distant mandates.

The state should allow any establishment to decide whether it is cost-effective to stay open after 10 p.m., Wexler said.

“The fact that our members are asking for this shows me that it is inexpensive,” he said. “The reason they feel this way is because at 10 o’clock at night they have customers who send them home …

“Let’s be clear: we’re not talking about people who are drunk. This is a critical revenue, ”he added. “These are places where one or the other additional hour can amount to 7 (percent) to 10 percent of your operating hours, but 15 (percent) to 20 percent of your sales …

“If you’re the bartender, an hour or two makes a big difference. Those 10, 15, 20 percent are gold today. Today it could be the difference between staying open and closing the doors. “

The Tribune News Service contributed to this report.

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