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THE CLEMENTINE COMPANY LLC, d/b/a THE THEATER CENTER, WEST END ARTISTS COMPANY d/b/a THE ACTORS TEMPLE; SOHO PLAYHOUSE INC. d/b/a SOHO PLAYHOUSE; and CARAL LTD. d/b/a BROADWAY COMEDY CLUB, Plaintiffs,
v.
BILL de BLASIO, in his Official Capacity as Mayor of the City of New York, Defendant.
United States District Court, S.D. New York
December 3, 2021
DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
McMahon, J.:
Plaintiffs are a group of small theaters and comedy clubs in New York City (the “City”) subject to the “Key to the City” vaccine mandate, which requires proof of vaccination for Plaintiffs' patrons and staff. Plaintiffs have filed a complaint against Defendant Mayor Bill de Blasio (the “Mayor” or “Defendant”) alleging that this vaccine mandate violates their First and Fourteenth Amendment right to free speech and Fourteenth Amendment right to equal protection of the laws. (Dkt. No. 7).
They now move this Court for a preliminary injunction to halt enforcement of the vaccine mandate against them (the “Motion”). (Dkt. No. 12). Defendant opposes the Plaintiffs' Motion on the grounds that Plaintiffs lack standing, are unlikely to succeed on their constitutional claims, and do not satisfy the remaining requirements for issuance of a preliminary injunction (Dkt. No. 20).
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Because the Court agrees that Plaintiffs lack standing and are unlikely to succeed on their claims, the motion for a preliminary injunction is DENIED.
BACKGROUND
A. The COVID-19 Pandemic and the Attendant Executive Orders
On March 12, 2020, Defendant Mayor de Blasio declared a state of emergency in the City in response to the outbreak and spread of the COVID-19 virus. (Amended Complaint, Dkt. No. 7 (“AC”), ¶ 20). On March 16, 2020, Defendant Mayor de Blasio issued Executive Order 100 closing theatres, comedy clubs, and other business in the City - in an attempt to slow the spread of the COVID-19 virus, “flatten the curve, ” and prevent hospitals from becoming overwhelmed. (Id. ¶¶ 20, 24). Plaintiffs were closed until April 2, 2021. (Id. ¶ 30)
On April 2, 2021, theaters and comedy clubs in New York were permitted to reopen at 33% capacity (Id.). Shortly thereafter, on May 19, 2021, Defendant Mayor de Blasio lifted the capacity restrictions on theatres and comedy clubs, allowing the Plaintiffs to reopen without capacity limits but with certain health and safety requirements, such as ensuring that patrons wear masks. (Id. ¶¶ 35, 36). Beginning June 16, 2021, the mask requirement was limited to ensuring unvaccinated patrons wear a mask. (Id. ¶ 36).
B. The “Key to the City” Vaccine Mandate
Beginning August 17, 2021, Mayor de Blasio instituted a proof of vaccination requirement for all patrons over the age of 12 and employees, interns, volunteers, and contractors at indoor recreational businesses in the City, including theatres and comedy clubs. (EEO 250 §§ 2.b, 2.f(8); AC ¶ 37). The vaccine mandate was termed the “Key to the City.” (AC ¶ 38).
The Key to the City vaccine mandate applies to “covered entities, ” defined as “any entity that operates one or more covered premises, except... pre-kindergarten through grade twelve (12)
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public and nonpublic schools and programs, houses of worship, childcare programs, senior centers, community centers...” See EEO 250 § 2.f(2). “Covered premises” are indoor food services, indoor gyms and fitness settings, id. at § 2.f(3)(ii) & (iii), and
indoor portions of the following locations, regardless of the activity at such locations: movie theaters, music or concert venues, adult entertainment, casinos, botanical gardens commercial event and party venues, museums, aquariums, zoos professional sports areas and indoor stadiums convention centers and exhibition halls, hotel meeting and event spaces performing arts theaters, bowling alleys, arcades, indoor play areas, pool and billiard halls, and other recreational game centers [.]
Id. at § 2.f(3)(i).
Covered entities are required to check vaccination status of their patrons and staff or pay a fine - $1000 for the first failure to check vaccination status, $2000 for the second failure, and $5000 for each subsequent failure. (AC ¶ 38).
Plaintiffs do not allege that they have been assessed any fines under the Key to the City vaccine mandate. Instead, they allege that their harms have been the possibility of fines or a criminal misdemeanor charge if the mandate is enforced, that Plaintiffs have had to turn away patrons (as their “guests struggle to comply with New York's mandate and to show proof of vaccination”), [1] and that the mandate stigmatizes the Plaintiffs, the stigma being that theatres are now allegedly perceived as “uniquely dangerous venues.” (Id. ¶¶ 38, 52-61).
C. The Instant Lawsuit
On September 16, 2021, Plaintiffs filed a complaint against Defendant Mayor de Blasio asserting two claims: (1) violations of the first and fourteenth amendments (freedom of speech) and (2) violation of the fourteenth amendment (equal protection). (Compl., Dkt. No. 1). Plaintiffs
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allege as the basis for both of their claims that, under the vaccine mandate, Plaintiffs “are prohibited from admitting customers without requiring proof of vaccination when putting on theater or comedy shows” while churches, schools, and community centers are not subject to the same mandate. (Id. ¶ 4). For the first, Plaintiffs claim this violates the Free Speech Clause of the First Amendment; for the second, Plaintiffs claim this violates the Equal Protection Clause of the Fourteenth Amendment.
Specifically, as to their first claim, Plaintiffs allege that their right to free speech has been violated because “Unvaccinated individuals (or individuals without sufficient proof of having been vaccinated) are barred by the Key to NYC vaccine mandate from attending a theatrical or comedy performance at one of Plaintiffs' theaters, but not a worship service in the exact same venue or a theatrical or comedy performance put on at a community center or school.” (Id. ¶ 68). Plaintiffs allege that the vaccine mandate “discriminates against Plaintiffs by singling out theaters and comedy clubs for more restrictive treatment based on the content of speech that theaters and comedy clubs host and the identity of the speaker as a theater or comedy club.” (Id. ¶ 5).
As to their second claim, Plaintiffs allege that they are not being afforded equal protection under the laws because the Key to the City vaccine requirement “requires Plaintiffs to check vaccination status and exclude unvaccinated individuals (or individuals without sufficient proof of having been vaccinated) from attending a theatrical or comedy performance at one of Plaintiffs' theaters or comedy clubs, but a worship service in the exact same venue or a theatrical or comedy performance put on at a community center or school is not subject to those same requirements.” (Id. ¶ 79).
The Amended Complaint, filed on September 21, 2021, makes the same claims based on the same allegations. (See, e.g., AC ¶¶ 67, 78). Indeed, the only substantive change in the Amended
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Complaint is to remove one plaintiff, the Players Theater Management Corp, d/b/a The Players Theater, from the complaint.
D. Plaintiffs' Motion for Preliminary Injunction
On September 21, 2021, Plaintiffs filed this Motion, seeking a preliminary injunction that would halt enforcement of the “Key to NYC” Vaccine Mandate against Plaintiffs. (Dkt. No. 12). In support of their motion, Plaintiffs submit a declaration from Catherine Russell, the General Manager and Owner of Plaintiff The Clementine Company, setting forth the extensive voluntary safety precautions that the Clementine Company took as early as March 2021 in preparation for reopening, including mandatory staff vaccination, as well as the alleged harms the Clementine Company has suffered under the vaccine mandate, such as the threat of enforcement, turning away customers, and stigma. (Dkt. No. 15). On reply, Plaintiffs also submit new declarations from Ed Gaynes, the General Manager and Owner of Plaintiff Actors Temple Theatre (Dkt. No. 30) and Al Martin, the General Manager and Owner of Plaintiff Broadway Comedy Club (Dkt, No. 31), attesting to the harms they have suffered under the mandate.
Plaintiffs argue they are likely to succeed on the merits of their claims because the vaccine mandate is constitutionally suspect content-based discrimination subject to strict scrutiny and “under that demanding standard . . . cannot be justified.” (Dkt. No. 13 (“Mot.”), at 10). Plaintiffs argue that both their “free speech” and “equal protection” claims are subject to strict scrutiny, on the basis that their equal protection claim concerns the impingement of their fundamental right to free speech. (Id. at 19-20). Under the strict scrutiny, the vaccine mandate must be ‘“narrowly tailored' to meet a ‘compelling governmental interest.'” (Id. at 20 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015)). While Plaintiffs agree that the government “has a compelling interest in protecting public health by preventing the spread of an infectious disease, ” they argue
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that the City's compelling interest is “insufficient to justify” the vaccine mandate. (Id. at 20). Plaintiffs argue that the City's admittedly compelling interest is “insufficient” because the government has not offered “a compelling justification for its failure” to treat the Plaintiffs the same as “houses of worship, schools, or community centers” where the vaccine mandate is not imposed. (Id. at 20-21).
Plaintiffs argue that they will suffer the following irreparable harms absent an injunction: (1) loss of their first amendment freedoms; (2) “imminent risk of financial penalties and even criminal liability” under the vaccine mandate; (3) stigma impacting “Plaintiffs' business and expressive activities.” (Id. at 23-24).
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