NEW YORK — New York bars and restaurants must continue to close at 10 p.m. after an appellate judge stayed a lower court’s order Wednesday allowing them to operate beyond the state-mandated closing time.
A federal judge also ruled Tuesday that the state’s coronavirus-related curfew is constitutional.
Associate Judge Patrick H. NeMoyer, of the state Supreme Court’s Fourth Appellate Division, Rochester, stayed a Western New York Supreme Court judge’s restraining order allowing 91 dining establishments in Erie and Monroe counties that filed a lawsuit challenging Gov. Andrew Cuomo’s curfew to stay open past 10 p.m.
The lower court’s ruling still remains, but by the appellate judge staying the state Supreme Court judge’s ruling, the lower court’s decision is not enforceable, pending further action of the court.
Cuomo’s rule requires state eateries — allowed to serve patrons indoors at 50% capacity outside New York City — to stop on-premises dining between 10 p.m. and 5 a.m. Establishments are permitted to stay open later for takeout and delivery.
“Let plaintiffs-petitioners show cause before this court ... why an order should not be made vacating or modifying the temporary restraining order of the Supreme Court entered Feb. 5, 2021, in Erie County,” according to NeMoyer’s ruling issued Wednesday.
A virtual hearing is scheduled to be held at 1 p.m. Feb. 16 for petitioners to argue or appeal.
Wednesday’s decision came less than a day after District Judge Paul A. Crotty of the U.S. District Court of the state’s Southern District denied a Manhattan restaurateur’s request for a preliminary injunction against Cuomo’s Nov. 13 executive orders imposing a nighttime curfew requiring statewide bars and restaurants to close at 10 p.m. each day and prohibiting indoor dining in New York City.
The owner of Seaport House, a restaurant in the borough’s Seaport District, argued Cuomo’s order violated the 14th Amendment’s due process clause by denying a person’s “life, liberty or property” and freedom of assembly First Amendment protections.
“...under the Supreme Court’s holding in the 1905 case, Jacobson v. Massachusetts, state and local authorities must be granted substantial deference in addressing the COVID-19 pandemic,” according to Crotty’s ruling Tuesday. “[Cuomo and defendants] argue that the dining policy is a necessary public health measure against the COVID-19 pandemic and therefore that the public interest factor weighs against granting injunctive relief.”
Cuomo reversed the city’s indoor dining regulation last week. Indoor dining will resume in New York City on Friday. The 10 p.m. curfew stands.
The governor implemented the rules last fall to curb the spread of COVID-19 ahead of expected virus spikes after the holiday season, which started with Thanksgiving on Nov. 26.
Upstate bars and restaurants have been permitted to operate indoor dining at 50% capacity since June.
Representatives from Cuomo’s office referred to the court decisions after a request for comment.
Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said Tuesday state officials should rescind the curfew, as restaurant and tavern owners have proven through the pandemic they can safely operate and comply with state COVID-19 orders at any hour.
“The curfew right now to bar and tavern owners is actually far more damaging than the 50% capacity restrictions,” Wexler said. “The state has allowed us to manage [capacity limits] well, but at 10 o’clock at night — poof! Lights out. ...During the hours we’re allowed to be open, the state is allowing us to have up to 50% capacity and our customer demand is pretty much matching that. At 10 o’clock at night, our customer demand is somewhere north of zero, but our legal ability to serve is zero.”
Restaurants have largely not reported demands outside the 50% capacity limits, he said, as some customers feel comfortable and safe to dine indoors, but others continue to prefer to-go or delivery orders.
Bar and restaurant owners feel the capacity pressure on special occasions, such as Sunday’s Super Bowl or Valentine’s Day this weekend.
Eateries, bars and similar businesses have sustained ongoing financial hardship because of the coronavirus pandemic. Restaurants nationwide registered a low $30 billion in revenue last April, down more than $116 billion between March and June 2020, according to the National Restaurant Association and preliminary U.S. Census Bureau data.
Sales rebounded, but remained $18 billion short of pre-COVID-19 sales through the summer.
Restaurant owners filed suit against Cuomo and the city alleging both dining policies impact their livelihoods and the restaurant industry.
“They have experienced substantial losses in revenue and are at risk of closing up shop permanently,” according to the suit.
“Plaintiffs’ real injuries in this case are the substantial losses in revenue caused by the COVID-19 pandemic and its accompanying restrictions,” according to Crotty’s ruling. “As the majority of New Yorkers decide to play it safe and dine at home during the pandemic, restaurants across the state — and especially in New York City — have had to endure substantial losses in revenue. These injuries are palpable; their significance is not lost on this court. But as it pertains to the law, the plaintiffs’ injuries constitute monetary damages, which are not grounds for a preliminary injunction.”
Cuomo has argued the curfew will prevent patrons from staying out late and publicly consuming alcohol, making them less likely to comply with the state’s mask-wearing and social-distancing mandates.
The state should permit each establishment to decide if staying open past 10 p.m. is cost effective, Wexler said.
“The fact our members are demanding it tells me it is cost effective,” he said. “The reason they feel this way is they have customers at 10 o’clock at night who they are sending home and they have customers who are telling them. Let’s be clear: We’re not talking about people who are drunk. This is crucial revenue. These are places where the extra hour or two may be 7 to 10% of their operating hours, but it may be 15 to 20% of their revenue.
“And if you’re the bartender, an hour or two makes a lot of difference. That 10, 15, 20% today is gold. Today, it could be the difference between staying open and closing their doors.”
Tribune News Service contributed to this report.