Bill & Ted's Riviera, Inc. v. Cuomo, 1:20-CV-1001 (FJS/TWD)

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: SCULLIN, Senior Judge
• Citation: 494 F.Supp.3d 238
• Parties: BILL & TED'S RIVIERA, INC. and Partition Street Project, LLC, on behalf of themselves and all other similarly situated individuals, Plaintiffs, v. Andrew M. CUOMO, Letitia James, Greeley T. Ford, Empire State Development Corporation, and New York State Liquor Authority, Defendants.
• Docket Number: 1:20-CV-1001 (FJS/TWD)
• Decision Date: 13 October 2020

494 F.Supp.3d 238

BILL & TED'S RIVIERA, INC. and Partition Street Project, LLC, on behalf of themselves and all other similarly situated individuals, Plaintiffs,
v.
Andrew M. CUOMO, Letitia James, Greeley T. Ford, Empire State Development Corporation, and New York State Liquor Authority, Defendants.

1:20-CV-1001 (FJS/TWD)

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

Signed October 13, 2020

494 F.Supp.3d 242

OF COUNSEL, PHILLIP A. OSWALD, ESQ., R. ANTHONY RUPP, III, ESQ., RUPP BAASE PFALZGRAF CUNNINGHAM LLC, 25 Walton Street, Saratoga Springs, New York 12866 -and- 1600 Liberty Building, 424 Main Street, Buffalo, New York 14202-3616, Attorneys for Plaintiffs.

OF COUNSEL, CHRISTOPHER LIBERATI-CONANT, ESQ., OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, The Capitol, Albany, New York 12224, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

SCULLIN, Senior Judge

I. INTRODUCTION

In their Verified Complaint, Plaintiffs assert a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants seeking declaratory and injunctive relief for violations of their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as a claim under Article 78 of New York Civil Practice Law and Rules, based on Defendants’ promulgation and enforcement of certain Executive Orders.

Pending before the Court are Plaintiffs’ motion for a preliminary injunction and class certification brought by Order to Show Cause, see Dkt. No. 2, and Defendants’ cross-motion to dismiss for failure to state a claim, see Dkt. No. 12. The Court heard oral argument in support of and in opposition to these motions on September 11, 2020, and reserved decision. The following constitutes the Court's resolution of these motions. See, generally , Dkt. No. 1, Verified Complaint.

II. BACKGROUND

On March 7, 2020, Defendant Cuomo issued Executive Order 202, which "declared a State Disaster Emergency for the State of New York based on the presence of travel-related cases and community transmission of COVID-19 having been documented in the State." See id. at ¶ 31. A number of Executive Orders followed. See id. at ¶¶ 35-47. For purposes of this case, a brief summary of the most relevant of these Executive Orders follows. On May 14, 2020, Executive Order 202.31 continued, until May 28, 2020, the " ‘postponement or cancellation of all non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations, games, meetings or other social events)....’ " See id. at ¶ 39 (quoting [Exhibit "A"] at 70). On May 28, 2020, pursuant to Executive Order 202.34, Defendant Cuomo continued the " ‘required postponement, cancellation, or restriction on size of all non-essential gatherings of more than ten individuals[.]’ " See id. at ¶ 43 (quoting [Exhibit "A"] at 76). On June 15, 2020, pursuant to Executive Order 202.42, Defendant Cuomo relaxed the ban on "non-essential gatherings" pursuant to Executive Order 202.10 to " ‘allow twenty-five (25) or fewer individuals, for any lawful purpose or reason, provided that the location

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of the gathering is in a region that has reached Phase 3 of the State's reopening, and social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.’ " See id. at ¶ 46 (quoting [Exhibit "A"] at 87). Finally, Executive Order 202.45, issued on June 26, 2020, modified previous orders and " ‘[allowed] 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.’ " See id. at ¶ 47 (quoting [Exhibit "A" at 87])

Notwithstanding these restrictions, Plaintiffs allege that Defendants "have created thousands of exceptions to the 50-person limit by allowing restaurants -- including those operated by the proposed class members -- to host members of the general public for dinner service at 50% of their regular maximum capacity." See id. at ¶ 54. Furthermore, Plaintiffs argue that "Defendants have ... enforced the 50-person limitation on weddings despite the fact that attendees at a wedding are obligated to follow the same social-distancing and hygiene rules and standards as attendees at a restaurant for dinner service as detailed in the Interim Guidance." See id. at ¶ 57 (citing Ex. C). Plaintiffs assert that they and the proposed class members "are deprived of equal protection under the Fourteenth Amendment to the United States Constitution" because Defendants prohibit them "from hosting weddings in excess of 50 people, while restaurant service under the same circumstances and at the same locations -- as well as at other similarly situated locations -- are permitted to seat more than 50 people for dining in a manner that is deemed safe by the State of New York" as long as they do not exceed 50% of the maximum capacity of that venue. See id. at ¶ 59.

Specifically, Plaintiffs state that, as applied to Plaintiff Riviera, which has a regular maximum capacity of 353 people, the rules that Defendants have promulgated for food service facilities permit it "to provide restaurant service for up to 176 people at one sitting. However, under the same rules, Riviera is prohibited from hosting a wedding dinner in excess of fifty people[.]" See id. at ¶¶ 14, 62. Furthermore, with regard to Plaintiff Partition Street, its Diamond Mills facility "consists of a ballroom with regular maximum capacity of 400 people and a tavern with regular maximum capacity of 176 people." See id. at ¶ 15. Under Defendants’ rules for food service facilities, "Partition Street is able to provide restaurant service in the ballroom for 200 people and in the tavern for 88 people. However, under the same rules, Partition Street is prohibited from hosting a wedding gathering in excess of fifty people[.]" See id. at ¶ 65.

Plaintiffs argue that "[t]here is no rational basis to justify the disparate treatment of restaurant service and wedding gatherings[,]" see id. at ¶ 71, and that "Defendants’ severe restriction of wedding gatherings, while permitting numerous other gatherings unrestricted as to size, is not rationally related to any legitimate state interest and thus cannot survive rational basis analysis under the Equal Protection Clause[,]" see id. at ¶ 72. Therefore, Plaintiff's assert that this Court should issue a preliminary injunction and certify the proposed class.

III. DISCUSSION

A. Plaintiffs’ motion for a preliminary injunction

" ‘The purpose of a preliminary injunction is ... to preserve the relative

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positions of the parties.’ " N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc. , 883 F.3d 32, 37-38 (2d Cir. 2018) (quoting Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981) ). "A preliminary injunction is an ‘extraordinary and drastic remedy’ ...; it is never awarded as of right[.] ..." Munaf v. Geren , 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal citations omitted). Generally, a plaintiff who seeks "injunctive relief [that] would ‘affect government action taken in the public interest pursuant to a statute or regulatory scheme, ... must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.’ " Murray v. Cuomo , No. 1:20-cv-03571-MKV, 460 F.Supp.3d 430, 442, (S.D.N.Y. May 18, 2020) (quoting Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton , 841 F.3d 133, 143 (2d Cir. 2016) (citing Red Earth LLC v. U.S. , 657 F.3d 138, 143 (2d Cir. 2011) )).

In a case such as this one, however, in which Plaintiffs seek "a mandatory injunction against the government that would change the status quo existing when the case was filed ... [they are] subject to a heightened standard. Namely, [they] must show ‘a "clear" or "substantial" likelihood of success on the merits.’ " Id. (quotation omitted). "Requiring such a heightened showing is consistent with the principle that ‘governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.’ " Luke's Catering Serv., LLC v. Cuomo , No. 20-CV-1086S, 485 F.Supp.3d 369, 378, (W.D.N.Y. Sept. 10, 2020) (quoting Able v. United States , 44 F.3d 128, 131 (2d Cir. 1995) ).

As a first step, the Court will address whether Plaintiffs have demonstrated a clear or substantial likelihood of success on the merits of their Equal Protection claim.

Among the powers reserved to the States under the Tenth Amendment is the State's police power, which includes the power and authority "reasonably necessary to ‘guard and protect’ public health and public safety, including protecting...