Hund v. Cuomo

501 F.Supp.3d 185

Michael HUND, Plaintiff,

v.Governor Andrew M. CUOMO, in his official capacity as Governor of New York State, and Vincent G. Bradley, in his official capacity as Chairman of the State Liquor Authority, Defendants.

20-cv-1176 (JLS)

United States District Court, W.D. New York.

Signed November 13, 2020

Peter Jay Speroni, The Parlatore Law Group, LLP, New York, NY, for Plaintiff.

George Michael Zimmermann, Office of the New York State Attorney General, Buffalo, NY, for Defendants.

DECISION AND ORDER

JN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE

New York State has responded to the COVID-19 pandemic with numerous restrictions. This case involves one such restriction, set forth in the New York State Liquor Authority's Phase 3/4 Guidelines for Licensed On-Premises Establishments. The Court must decide if the incidental-music rule contained in these guidelines—which allows licensed establishments to provide live music that is incidental to the dining experience but not advertised, ticketed live music—comports with the United States Constitution. Because it does not, the Court grants Plaintiff's motion for a preliminary injunction, as set forth in detail below, and grants in part and denies in part Defendants’ motion to dismiss the complaint.

BACKGROUND

I. Procedural History and Factual Background

Musician Michael Hund filed this lawsuit on August 31, 2020. Dkt. 1. He alleges claims against Defendants Andrew M. Cuomo and Vincent G. Bradley, in their official capacities as the Governor of New York State and the Chairman of the State Liquor Authority, for violations of the United States Constitution. See id. Specifically, Hund claims violations of the: (1) First Amendment; (2) Due Process Clause of the Fourteenth Amendment; and (3) Takings Clause of the Fifth Amendment. See id. at 14-17.¹ He also references his rights under the Fourteenth Amendment's Equal Protection Clause. See id. ¶ 23. He seeks preliminary and permanent injunctions and $100,000 in damages. See id. at 17.

Hund "operates his business by coordinating and contracting with venues, including those within New York State, to offer, advertise, and perform at live musical events for which tickets are sold to fans of his music." Dkt. 1 ¶ 4. His claims stem from the New York State Liquor Authority's Phase 3/4 Guidelines for Licensed On-Premises Establishments (the "SLA Guidelines"), which Defendant Bradley promulgated in connection with Defendant Cuomo's Executive Orders regarding COVID-19. See Dkt. 1 ¶ 18.

The relevant portion of the SLA Guidelines provides:

Q: Can I have live entertainment or a DJ in my indoor or outdoor dining area?

A: Restaurants and other on premises food and beverage establishments that have a license through the SLA are only allowed to offer on-premise music if their license certificate specifically allows for such activity (i.e., live music, DJ, recorded, etc.). A manufacturer that has an on premises license also must assure that its on premises license certificate specifically allows for the type of music it is offering. A manufacturer without a separate on premises license may offer music unless its license certificate specifically prohibits such music.

If offering music, indoors or out, all relevant aspects of the respective Department of Health guidance dining must be followed, e.g., patrons should not be standing except for necessary reasons (e.g., restroom, entering/exiting), standing patrons should wear face coverings, etc. Performers should be at least 12 feet from patrons.

All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase.

Additionally, please note that only incidental music is permissible at this time. This means that advertised and/or ticketed shows are not permissible. Music should be incidental to the dining experience and not the draw itself.

See Dkt. 9-2, at 4 (emphasis added). Hund challenges the emphasized portion of the above excerpt, which the Court will refer to as the incidental-music rule.

On September 16, 2020, Hund moved for a preliminary injunction and a temporary restraining order, seeking to enjoin Defendants from enforcing the incidental-music rule. See Dkts. 7-2, 9. The Court held a status conference on September 23, 2020. Dkt. 10. At the conference, the Court told Hund that it would consider his motion for a temporary restraining order and a preliminary injunction together, and would decide them after considering both parties’ arguments. Defendants shared that they would move to dismiss the complaint, so the Court set a coordinated briefing schedule on all motions. See Dkt. 10.

Defendants moved to dismiss the complaint on September 30, 2020, arguing that the Court lacks subject-matter jurisdiction and that Hund's claims fail on the merits, and opposed Hund's motion for preliminary injunction. See Dkts. 13, 14. Hund opposed Defendants’ motion to dismiss and replied in support of his motion for a preliminary injunction. See Dkts. 22, 23. And Defendants replied in support of their motion to dismiss. See Dkt. 25.

On November 3, 2020, the Court held oral argument on both motions, at which it reserved decision and told the parties it would issue a written decision and order. See Dkt. 26.²

II. Regulatory Backdrop and Concerns about Non-Incidental Music

The facts and circumstances surrounding the ongoing COVID-19 pandemic are well-known and well-documented, and the Court will not restate them here. It will, however, briefly discuss the regulatory backdrop relevant to Hund's claims.

Over the course of the pandemic, Defendant Cuomo has issued a series of Executive Orders regarding COVID-19. These Executive Orders imposed restrictions on, and issued directives to, various industries and sectors of the economy—and, later, relaxed certain restrictions. The SLA Guidelines supplement, but do not replace or supersede, the Executive Orders. See Dkt. 9-2, at 1 ("This guidance is not intended to replace any existing applicable local, state, and federal laws, regulations, and standards.").

The SLA Guidelines apply to "Licensed On-Premises Establishments (e.g. restaurants, bars, taverns, clubs, catering establishments, manufacturers with on-premises privileges, etc.) located in regions that have reached Phase 3 ...." See Dkt. 9-2, at 1. In other words, the SLA Guidelines apply to establishments that are licensed by the State Liquor Authority.

The SLA Guidelines explicitly state that the Food Service Guidelines for Employers and Employees apply to covered establishments, as well. See Dkt. 9-2, at 1. Examples of additional mandatory restrictions that apply across the board include: (1) occupancy restrictions; (2) distancing of tables or, alternatively, erection of barriers; (3) employee face-covering requirements; (4) requirement that patrons wear face coverings at all times except when seated at their tables; (5) maximum per-table capacity; (6) separately-designated entrances and exits for employees and patrons; (7) adherence to CDC and Department of Health cleaning and disinfecting guidelines; (8) maintaining hand hygiene stations; and (9) screening employees for COVID-19 symptoms and exposure. See Reopening New York: Food Services Guidelines for Employers and Employees (last visited Nov. 12, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Food_Services_Summary_Guidelines.pdf.

The SLA Guidelines make clear that they do not replace the Food Service Guidelines, and that the Food Service Guidelines apply to all licensed establishments alongside the SLA Guidelines.

The Amended Declaration of Elizabeth M. Dufort, M.D., FAAP, which Defendants submitted in opposition to Hund's motion for a preliminary injunction, discusses the evolution of COVID-19 in New York, the regulatory scheme that applies to venues like the licensed establishments covered by the incidental-music rule, and the concerns that motivated the incidental-music rule. See Dkt. 20. In particular, Dr. Dufort explains that incidental music is allowed—but advertised, ticketed live performances are not—because incidental music does not pose the same risks of: (1) coordinated arrival and departure times; (2) congregation and mingling; (3) length of time spent at the venue and related increase in alcohol consumption; (4) number of patrons; and (5) singing or shouting by patrons. See id. ¶¶ 68, 69, 73, 74, 82, 83, 84, 95. In sum, Dr. Dufort characterizes the advertised, ticketed live musical performances prohibited by the incidental-music rule as potential super-spreader events for COVID-19. See id. ¶¶ 98-101.

ANALYSIS

III. Defendants’ Motion to Dismiss

A. Motion to Dismiss Standards

Federal Rule of Civil Procedure 12(b)(1) requires courts to dismiss claims that they lack statutory or constitutional power to adjudicate. See Fed. R. Civ. P. 12(b)(1) ; Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff who asserts that subject-matter jurisdiction exists has the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova , 201 F.3d at 113.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must allege facts that—accepted as true—are sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The complaint need not contain detailed factual allegations but, "at a bare minimum," must "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Yang Zhao v. Keuka Coll. , 264 F. Supp. 3d 482, 490 (W.D.N.Y. 2017) (quoting Goldstein v. Pataki , 516 F.3d 50, 56 (2d Cir. 2008) ).

When faced with motions to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), courts should consider the Rule 12(b)(1) challenge first...