BUFFALO, N.Y. (WBEN) – Local restaurants are fighting the state in court to allow patrons back into the restaurant, even in a limited capacity.
The lawsuit filed Thursday by Hogan Willig Lawsuit represents 40 local restaurants, including some in the Rochester area. It gained further traction after Governor Andrew Cuomo said in a news conference that restaurants are not contributing as much to the spread of coronavirus as much as expected.
“All they’re doing is destroying the economic backbone of the country, but particularly Erie County and Western New York,” Attorney Corey Hogan said. “You also have the hard-to-understand situation where you have one restaurant on one side of the canal that is shut down (and the other side is open).”
Restaurants want the ability to have indoor dining again and will continue to follow social distancing guidelines and mask rules.
The Byrd House in Orchard Park is among the restaurants who joined the lawsuit.
“It’s been a long road,” owner Brendan Biggane said. “When we got closed down again in November, we were hoping it was going to be a couple weeks…Now here we are in our sixth week. Taking December from us is like taking two of any other months from us. We’re holding up but the thread we’re hanging on by is getting frayed.”
Despite areas of the state previously reaching the metric to be considered an “orange zone”, where restaurants are limited only to outdoor dining and takeout, the state has still not given those areas that designation.
It was changed in recent weeks from a geographical area that has a 4% positive test rate over a seven-day average for the last ten days to the same metric but with 85% of hospital capacity.
The state can also give an orange zone status if “the State Department of Health determines the region’s rate of hospital admissions is unacceptably high and a zone designation is appropriate the control the rate of growth”.
“These restaurants are in a position where they don’t know what to do in terms of employees and ordering supplies,” Hogan said. “Prior to that, there was at least an understanding that if they maintained a use of masks and maintain social distancing, bought plexiglass, kept the air flowing, they could operate at 50% capacity. They had some way then of operating their business.”
Other businesses told WBEN they worried about speaking out publicly out of concerns for retribution from the state and the liquor authority.
“When we do open, is the SLA going to be on our doorstep?” Biggane said. “I’ve got nothing to hide. If they want to come in, we literally have nothing to hide. There’s nothing they can do to me that they already haven’t done.”
Wednesday’s ruling by a state supreme court judge gave restaurant owners hope that they will win this lawsuit for similar reasons.
Athlete’s Unleashed in Orchard Park successfully sued the state and was given permission by a judge to reopen its doors at 100% capacity. The court victory for the gym may pave the way for other industries who are impacted by the state’s “arbitrary and capricious” metrics.
“More and more people are starting to understand that gyms and restaurants, hair salons, are not the bad guys on the block,” Hogan said. “They’re not the ones contributing to COVID-19. The press, though, and the fear that exists is so powerful that that counters my optimism because people are so afraid of dying from COVID-19 and now they’re talking about this new strain which will ultimately mean nothing. People get battered with all this negative news.”
Biggane said he was glad to see Athletes Unleashed reopen but was frustrated that other similar businesses could not.
“The tipping point came to me last week when I watched (Governor Cuomo) chuckle his way through his press conference and he thinks it’s funny that people are losing everything they have,” Biggane said. “That’s when I decided I’m going to get on board and try to sue the state. The movie theatres sued. Guess what? They opened. The salons sued. Guess what? They were opened.
Now the gyms are suing and they’re reopening. Our hand was kind of forced here.”
We have reached out to the governor's office for comment. The state typically does not comment on litigation.