A group of restaurants won a lawsuit Wednesday challenging New York Governor Andrew Cuomo’s coronavirus restrictions, meaning they will be allowed to open for business.
The restaurants argued that the governor’s restrictions prohibiting them from offering indoor dining were arbitrary and not based on evidence related to the coronavirus. Judge Henry J. Nowak agreed, writing in his decision that the state Department of Health (DOH) used unreliable contract tracing data to determine which areas were put under various restrictions. (RELATED: These Governors Told Citizens To Stay Home. Then They Broke Their Own COVID Rules)
Cuomo implemented a “Micro-Cluster” strategy to control the spread of coronavirus that designated various areas of the state as red, orange, or yellow zones. Red zones, or areas that were considered coronavirus hot-spots, were subject to the most restrictive rules. Orange zones were the areas directly surrounding the red zones and were the second-most restrictive, and yellow zones were the least restrictive. The DOH monitored data on testing and hospitalizations and used contact tracing to determine the geographic boundaries for the red, orange, and yellow zones.
A view of igloo dining tents at Bank of America Winter Village in Bryant Park on December 23, 2020 in New York City. The pandemic continues to burden restaurants and bars as businesses struggle to thrive with evolving government restrictions and social distancing plans which impact keeping businesses open yet challenge profitability. (Photo by Cindy Ord/Getty Images)
Most of Erie County, where the restaurants that filed the lawsuit are located, was designated as an orange zone on Nov. 18. Under the orange zone’s restrictions, restaurants and bars were prohibited from serving food or beverages on site.
However, the judge found that Cuomo and the DOH “did not identify any clusters requiring Red Zone Status within the designated area.” The only justification given for the classification was a reference to a government website that read, “parts of the Erie Yellow Precautionary Zone meet the metrics to transition to an Orange Warning Zone. The previous Yellow Zone is expanded to include new parts of Erie County seeing upticks in new cases, positivity, and hospital admissions.” (RELATED: Restaurant Owner Sues Gavin Newsom Over COVID-19 Lockdowns)
Judge Nowak also said that the criteria for whether an area is classified as an orange or yellow zone are not distinctive enough. In order for an area to be classified as a yellow zone, the 7-day rolling positivity average for 10 days had to be above 2.5% – but if that number exceeded 3%, the area was classified as an orange zone. “One could envision a scenario where the 7-day rolling average positivity for ten days in a specified area rose and fell above and below the 3 % figure on a daily basis,” the judge wrote.
“For petitioners, the effect of this change in designation was dramatic,” the decision said. “As a result of the prohibition of all indoor dining in the new Orange Zone, thousands of employees have been laid off and petitioners have suffered financial losses to the point where their bars and restaurants will need to close.”