Luke's Catering Serv., LLC v. Cuomo

485 F.Supp.3d 369

LUKE'S CATERING SERVICE, LLC, d/b/a Lucarelli's Banquet Center, Buffalo Road Catering, Inc., d/b/a Avanti Mansion, Clinical Research Solutions, Inc., d/b/a Notting Hill Farm, Kloc's Grove Incorporated, Rosebud Stables, LLC, d/b/a Rosebud Estate Weddings, and O.P.T. Marketing, Inc., d/b/a O'Brien’s Sleepy Hollow, Plaintiffs,

v.Andrew M. CUOMO, In his official capacity as Governor of the State of New York, Letitia A. James, In her official capacity as the Attorney General of the State of New York, Empire State Development Corporation, Erie County Department of Health, and Cattaraugus County Department of Health, Defendants.

20-CV-1086S

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

Signed September 10, 2020

Nicholas Paul DeMarco, The Tarantino Law Firm, LLP, Buffalo, NY, for Plaintiffs.

George Michael Zimmermann, Joel J. Terragnoli, New York State Attorney General, Michelle M. Parker, Erie County Department of Law, Marylou Kathryn Roshia, Colucci & Gallaher, P.C., Buffalo, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, United States District Judge

I. INTRODUCTION

When faced with a society-threatening epidemic, state officials are empowered to implement emergency protective measures that infringe federal constitutional rights. They may generally do so at their sole discretion and for so long as is necessary. And as long as the emergency measures bear some real or substantial relation to the threatening epidemic and are not unquestionably a plain invasion of rights, the efficacy and wisdom of those measures are not subject to judicial second-guessing.

The State of New York faces a society-threatening epidemic in COVID-19. Beginning in March 2020, with his declaration of a disaster emergency throughout the state, New York Governor Andrew M. Cuomo has issued a series of emergency protective measures in the form of Executive Orders aimed at combatting COVID-19 and the public-health crisis it has created. Those measures have included imposing quarantines, mandating workforce reductions, closing schools, requiring face-coverings, and restricting activities of all types.

The plaintiffs here—six event and banquet centers that host large gatherings—challenge and seek to enjoin Defendants from continuing to enforce one of those emergency measures: Executive Order 202.45 and its progeny, which imposes a temporary 50-person limit on non-essential gatherings. Fiscally reeling from this ban that has effectively shut them down since March 2020, Plaintiffs understandably seek this Court's intervention in a bid to save their struggling businesses and avoid insolvency.

But as explained herein, this Court is constrained by decades-old Supreme Court precedent that requires great deference to the State's police power in times of crisis. Because the issuance of Executive Order 202.45 properly falls within this power, Plaintiffs’ pending motion for preliminary injunction will be denied, Defendants’ cross-motions to dismiss will be granted, and Plaintiffs’ will be afforded leave to file an amended complaint.

II. BACKGROUND

The six plaintiffs are event, banquet, and catering facilities that serve as private venues for weddings, religious services and celebrations, bridal and baby showers, family reunions, political events, and other large gatherings. (Complaint, Docket No. 1, ¶¶ 3-8, 20.) They are each "non-essential" businesses under the Governor's Executive Orders and are subject to the 50-person limitation on "non-essential" gatherings, which they allege has left them on the verge of insolvency. (Id. ¶¶ 23, 35.)

Defendants Andrew M. Cuomo and Letitia A. James are the Governor and Attorney General of the State of New York, respectively. (Id. ¶¶ 9, 10.) They are each sued in their official capacity. (Id. ) Defendant Empire State Development Corporation is a New York State public benefit corporation. (Id. ¶ 11.) Defendants Erie County Department of Health and Cattaraugus County Department of Health are municipal corporations within the State of New York. (Id. ¶¶ 12, 13.) Each defendant is alleged to have interpreted and enforced Governor Cuomo's Executive Orders, including the 50-person limitation on "non-essential" gatherings. (Id. ¶ 1.)

A. COVID-19 and Governor Cuomo's Executive Orders

COVID-19 needs little introduction. It is the potentially lethal respiratory disease caused by a novel coronavirus for which there is no known cure, no effective treatment, and no vaccine. See S. Bay United Pentecostal Church v. Newsom, ––– U.S. ––––, 140 S. Ct. 1613, 1613, 207 L. Ed. 2d 154 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief). Its rapid person-to-person spread has caused a global pandemic the likes of which has not been seen since 1918. And it continues to grip this nation, with new infections and deaths reported daily.

In response to this public-health crisis, the New York Legislature amended §§ 20 and 29-a of the New York Executive Law in early March 2020 to grant the Governor broad powers to "manage, prepare, respond to and contain the threat posed by" the virus. (Complaint, ¶ 25.) Shortly thereafter, Governor Cuomo declared a disaster emergency in New York on March 7, 2020, with the President of the United States proclaiming a national emergency on March 13, 2020. See N.Y. Exec. Order No. 202 (March 7, 2020);¹ Proclamation No. 9994, 85 Fed. Reg. 15,337 -38 (March 13, 2020); Complaint, ¶ 29. As Plaintiffs themselves recognize, the outbreak poses a significant and ongoing danger to the public health and welfare. (Complaint, ¶ 50.) To date, there have reportedly been 445,881 cases and 32,611 deaths in New York.²

After declaring the state-wide disaster emergency, Governor Cuomo issued a series of Executive Orders that he, State Attorney General James, the Empire State Development Corporation, and the Erie and Cattaraugus Departments of Health allegedly interpreted and enforced. (Id. ¶¶ 1, 24, 31, 49.) The early Executive Orders canceled or limited public gatherings, required workforce reductions at "non-essential" businesses and entities, and precluded any place of business or accommodation from operating at greater than 50% occupancy or seating capacity. (Id. ¶¶ 32-34, 36, 37, 39; N.Y. Exec. Order No. 202.1 (March 12, 2020).) Enforcement of these orders came through other Executive Orders that made it a violation of the local building code for any facility to permit a prohibited gathering and a violation of the public health law for any individual to participate in a prohibited gathering—with possible fines up to $1,000. (Complaint ¶ 38.)

On May 21, 2020, Governor Cuomo issued Executive Order 202.32, which relaxed the prohibition on "non-essential" gatherings by permitting gatherings of 10 or fewer individuals for any religious service or ceremony, or for the purposes of any Memorial Day service or commemoration, provided that social-distancing, cleaning, and disinfection protocols required by the New York State Department of Health were observed. (Id. ¶ 40.) The following day, the Governor permitted such gatherings under the same conditions for any lawful purpose in Executive Order 202.33. (Id. ¶ 41.)

On May 28, 2020, Governor Cuomo began "Phase 1" of New York's reopening plan with Executive Order 202.34. (Id. ¶ 42.) While the 10-person limitation on "non-essential" gatherings remained in place, certain businesses and industries in regions designated for reopening in "Phase 1" (including Western New York) were permitted to operate within certain restrictions and guidelines. ( Id. )

Approximately one week later, Governor Cuomo extended the prohibition on "non-essential" gatherings of more than 10 people in Executive Order 202.38 but carved out houses of worship, which were permitted to operate at 25% of their indoor capacity, provided that the house of worship was in a "Phase 2" reopening region and that all required social-distancing, cleaning, and disinfection protocols were observed. (Id. ¶ 43.)

This Executive Order also permitted restaurants to begin serving food and beverages on-premises but only in outdoor spaces, contingent on adherence to all applicable New York Department of Health guidance. See N.Y. Exec. Order No. 202.38 (June 6, 2020). The next day, the Governor limited Executive Order 202.38 to apply only to restaurants in regions that had reached "Phase 2" of reopening. See N.Y. Exec. Order No. 202.39 (June 7, 2020). Shortly thereafter, the Governor authorized the resumption of indoor dining at no greater than 50% capacity in restaurants located in "Phase 3" reopening regions. See N.Y. Exec. Order No. 202.41 (June 12, 2020).

On June 15, 2020, the Governor issued Executive Order 202.42, which increased permitted "non-essential" gatherings to 25 or fewer individuals, provided that the gatherings were in regions that had reached "Phase 3" of reopening and that all preventative protocols were observed. (Complaint ¶ 44.)

About one week later, the Governor issued Executive Order 202.45, which again increased permitted "non-essential" gatherings to allow

gatherings of fifty (50) or fewer individuals for any lawful purpose or reason, so long as any such gatherings occurring indoors do not exceed 50% of the maximum occupancy for a particular indoor area, and provided that the location of the gathering is in a region that has reached Phase 4 of the State's reopening, and provided further that social distancing, face covering, and cleaning and disinfection protocols required by the Department of Health are adhered to.

(Id. ¶ 45; N.Y. Exec. Order No. 202.45 (June 26, 2020).) This Executive Order has twice been extended and now expires on September 19, 2020. (Complaint ¶ 47; N.Y. Exec. Order No. 202.55 (Aug. 5, 2020); N.Y. Exec. Order No. 202.57 (Aug. 20, 2020).)

B. The State's Justification for the Executive Orders

Defendants have submitted the Declaration of Howard A. Zucker, M.D., J.D., the Commissioner of the New York State Department of Health, who is charged with leading New York's response...