Buffalo, NY (WBEN) Restaurants suing New York over the orange zone restrictions banning indoor dining return to court Monday in the hopes of moving a step closer to reopening.
Owners received some good news from State Supreme Court Justice Henry Nowak last week. "Nowak has told the state it needs to show the measures it has taken are scientifically based and are the least intrusive measure to achieve what it needs to achieve without invading upon people's constitutional rights," says prominent attorney Steve Cohen. He adds the governor's own numbers show restaurants are not a big source of the spread.
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Cohen says if it comes down to a Supreme Court showdown, restaurants could come out ahead. "Depending upon the confidence of the judges that we have in these different cases, we know we are on the right side of the law, and the US Supreme Court will continue to say the governor's color by color scheme by edict is unconstitutional." citing the high court's striking down of restrictions on capacity limits at houses of worship.
Cohen says this may come too late for some owners. "40 percent of the restaurants in WNY are shut down or shutting down or at the point of insolvency. The best case is bankruptcy, the worst case is closing and throwing away the key," explains Cohen. "60 percent are teetering on the brink of bankruptcy, but are hanging on by a thread."
He says restaurant owners are not the only ones in trouble. "Our employees are in bigger trouble," Cohen says of restaurant staffers. "People who clean, wash dishes, and these families are devastated this time of year, and all our clients are in dire straits," says Cohen.
One of the owners represented by Cohen is David Dischner of 99 Brick Oven and Grille in Lancaster. He says the orange zone restrictions make the playing field unfair. "In Niagara and Wyoming Counties, their numbers are higher than ours. But drive five minutes away, they go inside and eat, have a drink. We cannot do that," says Dischner.
Dischner says he had to do something he never did before this year. "I had to lay off 21 people on my staff the week of Christmas. I've never had to put people on unemployment," says Dischner. He adds if this pandemic happened a few years earlier, he would have lost everything.
Dischner thought restaurants would be able to open up with fans being allowed to enter Bills Stadium for a playoff game, but that wasn't the case. He hopes is to be able to reopen as soon as possible. "We need to try to make a living and we can at least know where our next meal is coming from, our employees can pay the rent and we can have some semblance of normalcy here," says Dischner.
Cohen believes Nowak will look at the scientific numbers from the state and rule the state must reopen restaurants for indoor dining, with proper social distancing protocols.