BUFFALO (WBEN) - Thursday was quite confusing and convoluted for Erie County restaurateurs, but as the old saying goes, all's well that ends well, right?
The day really began Wednesday, as Judge Henry Nowak ruled in favor of more than 90 restaurants in a lawsuit arguing that orange zone restrictions should be eased to allow for half-capacity indoor dining.
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However, only the restaurants named in the lawsuit were allowed to reopen, meaning all other restaurants within the orange zone that didn't participate in the lawsuit were still subject to the state-mandated orange zone restrictions. On Thursday morning, the Erie County announced that they would apply the yellow zone label to all restaurants regardless of the lawsuit.
But even that announcement came with a catch - though Erie County officials said they wouldn't enforce orange zone restrictions, restaurants that decided to open to indoor dining could still face punishment from the New York State Liquor Authority. A couple hours later...yet another announcement.
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With that announcement, Erie County restaurants officially received the green light to reopen to indoor dining to half capacity.
"We're open right now, and our dining room is open to 50% capacity," said Mike Mongan, owner of The Beach House Restaurant in Grand Island, who added that he was "very happy" that the county allowed all restaurants to open under yellow zone conditions.
Others are still playing the waiting game. Dave Schutte owns several restaurants including Britesmith Brewing, Creekview Restaurant and Oliver's, and he said they won't be open until next Tuesday to "make sure they have all their ducks in a row."
"We're very excited about the news for sure - it's a positive step forward, and we're excited to get back to welcoming our clients inside," Schutte began. "We are not quite ready to open up for indoor dining from a couple of perspectives - one is staffing, and the other is that we just want...to make sure we have proper food prepped, the restaurants properly cleaned, and with the Bills game Saturday night, honestly indoor dining is not going to be as good for us as it would be if we didn't have a Bills game."
Osteria 166 owner Nick Pitillo is in the same boat as Schutte in terms of not having enough food or staff ready to reopen immediately, but he also possesses a very real fear that all restaurant owners have had to deal with over the course of 2020.
"My immediate thought is, it's a preliminary injunction, and I certainly don't want to open up and have them come back in five or six days and have us close down again," said Pitillo.
Luckily, prominent local attorney Paul Cambria doubles as a lawyer and restaurant owner, as he owns Gianni Mazia's in Clarence. Cambria noted that they're opening up immediately, and he even encouraged other restaurants to do the same regardless of how the state decides to respond.
"Even an appeal is going to take quite some time - it's worth it for the restaurants to open," said Cambria. "Even if/when the state appeals, there is a period of time that you're given to prepare the record, to prepare the briefs, the appellate division in Rochester, they have lots and lots of cases...all the courts are backed up...so it would be quite some time before an appeal would be decided, and frankly, I think we are on extremely solid grounds in these cases."
New York City’s restaurant industry is calling on Cuomo to also halt his indoor dining ban in the city. Manhattan has relatively low rates of cases and hospitalizations, though rates are higher in Staten Island.
“Continuation of the indoor dining ban in New York City is divorced from any of the data and criteria the state has articulated and must be ended now,” NYC Hospitality Alliance executive director Andrew Rigie and executive director and counsel Robert Bookman said in a joint statement.
It’s the latest lawsuit that has questioned Cuomo’s micro-cluster approach launched in October.
Cuomo proposed imposing COVID-19 restrictions based on addresses of people testing positive, rather than statewide like last spring. Courts long deferred to Cuomo’s emergency authority, but restaurants and houses of worships have seen some success arguing Cuomo has gone too far.
The Supreme Court barred Cuomo in November from enforcing 10- and 25-person attendance limits at churches and synagogues in Brooklyn and Queens hot spots. Cuomo called that decision “irrelevant” because he ended up easing restrictions in those neighborhoods.
But in late December, the U.S. Court of Appeals for the Second Circuit ruled Cuomo’s attendance policy “discriminates against religion on its face” and ordered the federal district court to issue a preliminary injunction prohibiting enforcement in red and orange zones statewide. Cuomo’s office didn’t respond immediately Thursday to a question about the status of those restrictions.
Cuomo’s Thursday announcement was welcome news for county officials and restaurant owners who question why Cuomo has kept only some orange zones even as cases rise elsewhere.
“We’re very happy,” David Cleary, an owner of Pudgie’s Pizza Pasta & Subs, which has two locations in Chemung County, said. “We’ve been very patient the last 80-plus days. It’s good for all restaurants and dine-ins, especially mom-and-pop locations.”
Critics question Cuomo’s data and say his approach leads to people driving outside zones to dine indoors. Cleary said other restaurants in Chemung’s orange zone started opening this week in defiance of Cuomo’s restrictions.
“We really wanted to, but we’re trying to do what’s right and abide by the law,” he said, adding: “Now that we’re all able to open it’s easier.”
New York now has no red zones and seven orange zones, even as nearly the entire state is seeing high enough positivity rates to qualify under Cuomo’s original red zone metrics. Cuomo hasn’t updated zones in weeks, and said in December he’ll shutter a part of the state only if regional hospitalization reaches critical levels.
Red zones shutter nonessential businesses and outdoor dining, while orange zones only allow outdoor dining or takeout and limit gyms and hair salons to 25% capacity. Cuomo originally shuttered schools in those zones, but later allowed them to reopen if they launch testing programs.
New York is far below the mid-April peak of COVID-19, but infections surged this fall and winter. The state now ranks 12th in the nation for its average of hospitalizations and new cases per-capita over the past seven days.
In central and northern New York, Herkimer and Lewis counties have averaged a higher rate of new COVID-19 cases per-capita than Arizona over the past seven days. Long Island’s Suffolk County has a higher rate than California.
And Cuomo’s approach has fueled disagreements between state and local officials, whose data can often differ, and confusion for residents.
Chemung County’s own dashboard cites 210 active cases, 70 deaths of county residents and 57 residents hospitalized. But the state’s data — which doesn’t include hospitalizations by county — lists 107 deaths in total and 720 new cases over the past 10 days.
County public health spokesman Vincent Azzarelli said he doesn’t know why the state’s fatality count is different. He said the county’s “active cases” are cases the department’s currently monitoring.