New York Ignores “Potential Decimation” Of NYC Restaurant Industry, Justifying Public Health Policy With Mainstream Media ReportsDecember 17, 2020 – Article
Just two and a half months after reopening indoor dining at 25% occupancy with limited hours and no bar service, Governor Cuomo has again kyboshed indoor dining for New York City restaurants. The Governor made this announcement three days before restaurants were ordered to close, purportedly due to an increase in COVD-19 hospitalizations. Coincidentally, it was also fifteen days after Thanksgiving, a holiday traditionally celebrated with family and friends at private social gatherings.
On the same day, New York released contact tracing data for the first-time identifying sources of virus transmission between September and November 2020. The leading culprit—by a large margin—was private household and social gatherings, accounting for 73.84% of transmissions. In comparison, restaurants and bars accounted for merely 1.43% of transmissions statewide—while having indoor dining.
Given the 14-day incubation period for COVID-19, correlating indoor dining with an increase in the City’s hospitalizations two weeks after Thanksgiving defies both science and common sense. According to official data released by the Governor’s office, private social gatherings are “driving [the] spread” of COVID-19. Unlike restaurants, private gatherings are not subject to the rigorous safeguards implemented by the New York State Department of Health (“NYDOH”) to stop the spread of COVID-19. In the heart of the holiday season without the option of indoor dining, private gatherings will presumably not only continue but increase.
Shuttering an entire industry without articulating any data supporting such a draconian measure appears wholly unjustified. Especially when compared against the spurious sources the NYDOH is relying upon to justify the restrictions.
For months, the Governor has seemingly demagogued the NYC hospitality industry. Indoor dining should have resumed when New York City entered Phase III of the “New York FORWARD” initiative in accordance with the indoor dining guidelines established by the NYDOH (“NYS Dining Guidelines”). At the time the City was set to enter Phase III in July 2020, the Governor issued an executive order modifying his prior order specifically to exclude New York City from reopening indoor dining.
New York lifted the City’s indoor dining ban on September 30, 2020, but subject to separate standards than the NYS Dining Guidelines. NYS Dining Guidelines permitted restaurants to operate at up to 50% capacity with bar service and without a curfew. NYC Dining Guidelines limited indoor dining to 25% occupancy, a 12:00 a.m. curfew, no bar service, and included a hotline to report violations.
At that time, Cuomo announced the City's restrictions would be “reassessed based on the data by November 1.” Yet November 1 passed without public release of the data or any word whether indoor capacity would be increased in accordance with the standards set for the rest of the State.
On November 11, the Governor further reduced the City’s restaurant operations by imposing a statewide 10:00 p.m. curfew. Previously, New York State restaurants were not subject to any curfew, but City restaurants were limited to 12:00 a.m. for indoor dining and 11:00 p.m. for outdoor dining. Cuomo’s reasoning was to avoid “people from surrounding states closing at 10:00 p.m. coming here”, following imposition of similar curfews in New Jersey and Connecticut.
Questions of constitutionality aside, fears over non-New Yorkers dining in-state could have been quelled in a less restrictive manner with geographical limitations. Two days earlier, a New York Supreme Court judge upheld Cuomo’s executive authority to impose differing standards for New York City restaurants. See Bocelli Ristorante Inc., et al. v. Andrew M. Cuomo, et al., No. 151500/2020 (Sup. Ct., Richmond Cty. Nov. 9, 2020). The state court relied upon a federal decision from three weeks prior, upholding Cuomo’s 12:00 a.m. “dining curfew” when challenged by a New York City restaurant. See Columbus Ale House Inc v. Cuomo, No. 20-cv-4291 (BMC) (E.D.N.Y. Oct. 15, 2020).
The Columbus Ale House “dining curfew” decision was on appeal to the Second Circuit at the time the statewide curfew was imposed. A rebuttal brief was filed two days before the Governor ordered a State-wide curfew. See Columbus Ale House Inc v. Cuomo, No. 20-3574 (2d Cir.). By oral argument on December 8, the State relied upon the newly imposed State-wide curfew to refute as moot the fact that restaurants outside New York City had not initially been subject to a curfew.
Presumably, the ineffective legal challenges to date provide a sense of legitimacy to the increasingly restrictive guidelines on the New York City hospitality industry. It appears however, that struggling restaurants brave enough to challenge restrictions have not attacked glaring deficiencies in the sources the State has relied upon to justify its action.
New York courts are accepting the NYDOH declarations submitted by the Governor’s office at face value and applying a “common sense” approach upholding the restrictions. For example, at the Columbus Ale House oral argument before the Second Circuit, one of the appellate judges expressly said to the restaurant’s counsel “[y]ou seem to think that common sense shouldn’t be applied here.”
In refusing to grant an injunction, the Columbus Ale House trial court relied on certain “well understood” contributing factors to conclude “indoor dining poses a greater risk of virus transmission than many other activities,” including:
- The virus spreads more easily indoors and when people gather in close proximity;
- Social distancing and mask wearing are among the few tools available to slow its spread;
- Diners cannot wear masks while they eat and drink;
- Indoor dining necessarily brings individuals from different households together, even if at a distance;
- Thus, indoor dining poses a greater risk of virus transmission than many other activities.
Affording the Governor “great deference”, the court found the midnight curfew reasonably related to COVID-19 risk mitigation based upon the belief it would reduce possible late-night mask-less mingling among densely populated New York City, regardless of capacity restrictions on indoor dining.
Offered in opposition to the motion for an injunction was a declaration from the NYDOH’s Medical Director, Division of Epidemiology. It stated the Governor’s COVID-19 Task Force recognized “complete closure would . . . potentially decimate” the restaurant industry, but indoor dining “could result in significant congregating and mingling.” It also stated the NYC Dining Guidelines were “based on best known health practices at the time of publication.”
Yet to identify “best known health practices” that could “potentially decimate” an entire industry, the Governor and his Task Force seemingly deferred to the mainstream media over the World Health Organization (WHO) and the Center for Disease Control (CDC). For example, the focus of the Medical Director’s Declaration was on airborne transmission to justify banning bar service, limiting capacity to 25%, and imposing a curfew.
However, the CDC guidelines for restaurants and bars do not distinguish between “tables” and “countertops/bars”. They also provide restaurant ventilation recommendations to protect against the potential for airborne transmission, while stating evidence of airborne transmission is limited to certain circumstances (enclosed spaces with poor ventilation) and that data shows the risk of airborne transmission is much less than contact transmission.
Similarly, the WHO contributed to guidance on ventilation and air-conditioning systems in the context of COVID-19, providing that “[a]ir conditioning and ventilation systems that are well-maintained and operated should not increase the risk of virus transmission.”
The NYDOH Medical Director provided no data related to New York State bars operating for three months at 50% capacity without a curfew in accordance with the NYS Dining Guidelines. In defiance of both law and logic, she instead relied heavily on a USA Today article to justify the 12:00 a.m. curfew. The declaration quoted anecdotal statements—including those of the USA Today reporter—to conclude social distancing is “forgotten” at bars.
As “instructive” of this theory, the declaration provides details on a Washington State outbreak. It reads as if it were the Medical Director’s personal assessment, when she in fact merely quoted a journalist who included this anecdote in a story for NPR (National Public Radio)/Kaiser Health News:
Declaration of the Medical Director, Division of Epidemiology, NY Department of Health
75) “An outbreak linked to a bar and grill in southwestern Washington state is instructive. For karaoke night, the staff spaced the tables, checked temperatures at the door, even put up plexiglass barriers near the singers. Nonetheless, a few weeks later, close to 20 customers and employees had been infected.” Id. “You’re asking customers who are drinking and doing karaoke to follow the physical distancing and masking requirements…. So that was challenging in this particular situation.” Id.
Declaration Exhibit CC – NPR/Kaiser Health News Story (Deadly Mix: How Bars Are Fueling COVID-19)
An outbreak linked to a bar and grill in southwestern Washington state is instructive. For karaoke night, the staff spaced the tables, checked temperatures at the door, even put up plexiglass barriers near the singers. Nonetheless, a few weeks later, close to 20 customers and employees had been infected.
"You're asking customers who are drinking and doing karaoke to follow the physical distancing and masking requirements," said Dr. Alan Melnick, director of the Clark County Health Department, which conducted the investigation. "So that was challenging in this particular situation."
Without independently assessing the relevant underlying factors—such as occupancy, hours of operation, type of ventilation system, whether karaoke patrons were required to wear masks (either while singing or seated), and/or the Washington State regulations implemented at the time of the cited outbreak—there is simply no basis to draw a scientifically reliable comparison between Washington State and New York City.
Nor is it fathomable that the State is relying upon opinions of mainstream media journalists as justification for a decision that will “potentially decimate” an industry and infringe upon the due process rights of New Yorkers. Yet, in a Declaration submitted in the Bocelli case, the NYDOH Director of Epidemiology relied upon a New York Times article to support a correlation between indoor dining and transmission risk, evidenced by her citation parenthetical stating “(discussing data showing community COVID-19 outbreaks in cities and states that permitted indoor dining stemming from ‘bars and restaurants’).” She similarly relied upon an NPR article to assert “emerging science shows COVID-19 is transmissible through inadequately ventilated closed spaces, such as restaurants”. Yet the article was an investigative journalism story and stated that “among scientists there is ongoing debate about the extent to which aerosol transmission causes infection”.
The California Restaurant Association (“CRA”) successfully challenged a ban issued on outdoor dining in Los Angeles recently, where the California DOH’s “own data provided no support for the planned shutdown of outdoor restaurant operations.” The State offered no scientific justification for implementing requirements stricter than the CDC recommended guidelines. Nor did it refute the CRA’s proof showing the need for a risk-benefit analysis weighing the costs of closure against the benefits of social eating.
It was undisputed California has a duty to protect high-risk and vulnerable individuals, but the Court rejected as vague the State’s general conclusion that a “large portion of the population” at risk warranted closure of outdoor dining without any proof of a causal link. Further, the expert proof submitted by both sides affirmed that “[a]lthough not widely publicized, the evidence shows that the pandemic is not so overwhelming that the people should live in fear.”
It is also undisputed COVID-19 ravaged New York, but that alone is simply insufficient to give the Governor carte blanche at the hospitality industry’s expense. New York City restaurants with already limited resources took painstaking measures to ensure their dining rooms were compliant with NYC Dining Guidelines at the threat of stiff penalties. Restaurants and bars across the State operated at 50% capacity and no curfew for months. Without more, penalizing restaurants based upon rising hospitalizations alone—two weeks after Thanksgiving—is contrary to the State’s own contract tracing data and wholly unjustified.
Although Courts may not be permitted to second-guess the efficacy of emergency measures, Courts may ask whether the measures are “pretextual—that is, arbitrary or oppressive." If Cuomo and his COVID-19 Task Force are implementing public health policies in reliance upon USA Today, the New York Times, and other main-stream media outlets in deference to what “could” happen over the potential decimation that “would” happen with complete closures of restaurants, then decimation of the New York City restaurant scene may be imminent.
Authors: Edward P. Abbot (Partner-in-Charge, New York)
 Executive Order 202.81
 From the data collected through contact tracing between September and November 2020, household and private social gatherings accounted for 73.84% of the positive COVID-19 cases. This was followed by healthcare delivery at 7.81%, higher education students at 2.02%, education employees at 1.50%, then restaurants and bars at 1.43%.
 Reopening New York Food Service Guidelines for Employers and Employees, available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Food_Services_Summary_Guidelines.pdf (last visited Dec. 17, 2020)
 Executive Order 202.48
 Executive Order202.61.
 Reopening New York New York City Indoor Food Services Guidelines For Employees And Employers, available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYC_Indoor_Food_Services_Summary_Guidelines.pdf (last visited Dec. 17, 2020).
 See Press Release - Governor Cuomo Announces Indoor Dining in New York City Allowed to Resume Beginning September 30 with 25 Percent Occupancy Limit (Sept. 9, 2020), available at https://www.governor.ny.gov/news/governor-cuomo-announces-indoor-dining-new-york-city-allowed-resume-beginning-september-30-25 (last visited on Dec. 15, 2020).
 See “NYC Restaurants Left In Limbo Over Half Capacity Indoor Dining’s Return on November 1,” Erika Adams, Eater New York, Oct. 30, 2020, available at https://ny.eater.com/2020/10/30/21540200/nyc-restaurants-indoor-dining-half-capacity-november-cuomo (last visited on Dec. 15, 2020).
 On December 16, 2020, the State moved to dismiss the Columbus Ale House appeal in entirety, based upon EO 202.81.
 The Declaration of Elizabeth M. Dufort, M.D., FAAP, Medical Director of the Division of Epidemiology, New York State Department of Health, was executed September 29, 2020 and offered in opposition to Columbus Ale House.
 Commissioner Zucker; other Department of Health staff; certain agency staff, including the New York State Liquor Authority; medical staff; and consultants have been involved in the Governor’s efforts to respond to the COVID-19 public health emergency in New York State (collectively, “COVID-19 Task Force”).
 “CDC Considerations for Bars and Restaurants”, available at https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html (last visited Dec. 17, 2020)
 “Coronavirus disease (COVID-19): Ventilation and air conditioning in public spaces and buildings,” World Health Organization, Jul. 29, 2020, available at https://www.who.int/news-room/q-a-detail/coronavirus-disease-covid-19-ventilation-and-air-conditioning-in-public-spaces-and-buildings (last visited on Dec. 15, 2020).
 The declaration of Debra S. Blog, M.D., MPH, Director of the Division of Epidemiology, New York State Department of Health, was executed October 23, 2020 and offered in opposition to Bocelli Ristorante, Inc.
 Cal. Rest. Assoc. Inc., et al. v. Cty. Of Los Angeles Dep’t of Public Health, et al., No. 20STCP03881 (Los Angeles, Cal. Dec. 8, 2020).