Amato v. Elicker
Decision Date | 19 May 2020 |
Docket Number | No. 3:20-cv-464 (MPS),3:20-cv-464 (MPS) |
Citation | 460 F.Supp.3d 202 |
Parties | Michael AMATO, Joy Monsanto, and 50's Lounge, LLC, Plaintiffs, v. Mayor Justin ELICKER, Mayor's Representative, and Governor Ned Lamont, Defendants. |
Court | U.S. District Court — District of Connecticut |
Kevin Murray Smith, Norman A. Pattis, The Pattis Law Firm, LLC, New Haven, CT, for Plaintiffs.
James Newhall Tallberg, Patrick D. Allen, Karsten & Tallberg LLC, Rocky Hill, CT, Patricia A. King, City of New Haven, Roderick Ryan Williams, Office of Corporation Counsel, City of New Haven, New Haven, CT, for Defendant Justin Elicker.
Philip Miller, Robert J. Deichert, Connecticut Attorney General's Office, Hartford, CT, for Defendant Ned Lamont.
RULING ON PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Michael Amato and Joy Monsanto co-own and operate a restaurant—Plaintiff 50's Lounge, LLC—in New Haven, Connecticut. ECF No. 1 ¶ 9. The Plaintiffs filed this lawsuit on April 3, 2020, challenging actions that Defendant Ned Lamont (Governor of Connecticut) and Defendant Justin Elicker (Mayor of New Haven) took in response to the COVID-19 pandemic. On April 10, 2020, the Plaintiffs filed a motion for a temporary restraining order and preliminary injunction staying the enforcement of orders issued by Governor Lamont and Mayor Elicker that they claimed interfered with their business and their constitutional rights of assembly and association. For the reasons set forth below, the Plaintiffs’ motion is denied.1
The following facts are drawn primarily from the Plaintiffs’ Complaint, ECF No. 1, and their affidavits, ECF Nos. 8, 11-2, 11-3, which were first filed five days after the complaint on April 8, 2020.2 I also take judicial notice of the contents of Governor Lamont's and Mayor Elicker's relevant orders. Fed. R. Evid. 201(b).
Plaintiffs Amato and Monsanto have operated the 50's Lounge in New Haven since 2017, serving food and liquor "while hosting local artists in an on-site gallery." ECF No. 1 ¶ 11. The restaurant also has hosted political events. Id. ¶ 12.
As the Plaintiff's acknowledge, the "Coronavirus crisis began to take hold in Connecticut" in March 2020. Id. ¶ 13. I assume familiarity with the COVID-19 pandemic—an ongoing public health crisis with which all readers are familiar and which has resulted in thousands of death in Connecticut. See Coronavirus Disease 2019 (COVID-19) , CT.gov (May 12, 2020), https://portal.ct.gov/Coronavirus (As of May 12, 2020, Connecticut had 33,765 confirmed COVID-19 cases, and 3,008 COVID-19-associated deaths.). Governor Lamont announced the first positive case of COVID-19 in Connecticut on March 8, 2020. Governor Lamont Announces First Positive Case of Novel Coronavirus Involving a Connecticut Resident , Office of Governor Ned Lamont (Mar. 8, 2020), https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2020/03-2020/Governor-Lamont-Announces-First-Positive-Case-of-Novel-Coronavirus-Involving-a-Connecticut-Resident. On March 10, 2020, Governor Lamont "declare[d] a public health emergency and civil preparedness emergency throughout the State, pursuant to Sections 19a-131a and 28-9 of the Connecticut General Statutes." Governor Ned Lamont, Declaration of Public Health and Civil Preparedness Emergencies (Mar. 10, 2020), https://portal.ct.gov/Coronavirus/Pages/Emergency-Orders-issued-by-the-Governor-and-State-Agencies.
On March 15, the Plaintiffs decided to "close 50's Lounge for business," after considering "the best course of action for their business, their employees, and the community they served." ECF No. 1 ¶ 13.
After declaring a state of emergency, Governor Lamont issued a series of executive orders implementing "community mitigation strategies to increase containment of the virus and to slow down the transmission of the virus." Executive Order 7 at 1 (Mar. 12, 2020).3 The Governor's orders placed limits on nearly all areas of public life, including canceling classes at public schools, suspending non-critical court operations, and restricting workplaces for non-essential businesses. Most relevant to this case, Executive Order 7D, entered on March 16, 2020, placed limits on restaurant, bar, and private club operations, requiring that "any restaurant or eating establishment and any location licensed for on-premise consumption of alcoholic liquor ... shall only serve food or non-alcoholic beverages for off-premises consumption." Executive Order 7D at 2. On March 19, Executive Order 7G provided "[f]urther [c]larification" of the limit on bars and restaurants, stating that "[a]ny business with an active restaurant, café or tavern liquor permit ... shall be permitted to sell sealed containers of alcoholic liquor for pick up at such restaurant, café or tavern" under certain conditions. Executive Order 7G at 4. On March 20, 2020, the Governor ordered that "[n]on-essential businesses ... shall reduce their in-person workforces at any workplace locations by 100% not later than March 23, 2020 at 8:00 p.m." and that "the Department of Economic and Community Development ("DECD") shall issue lawfully binding guidance about which businesses are essential." Executive Order 7H at 2–3 (Mar. 20, 2020). The order provided that essential businesses "shall include, but not be limited to, the 16 critical infrastructure sectors as defined by the Department of Homeland Security ... including ... food and beverage retailers ... and restaurants, provided they comply with previous and future executive orders issued during the existing declared public health and civil preparedness emergency ...." Id. at 3.
Governor Lamont's executive orders also limited the number of persons who could gather for social or recreational purposes. See Executive Order Nos. 7, 7D, 7N. He issued the most restrictive such order on March 26, 2020, directing that "social and recreational gatherings ... of six (6) or more people ... are prohibited throughout the State of Connecticut." Executive Order 7N at 4 (Mar. 26, 2020). That order "d[id] not apply to government operations, private workplaces, retail establishments, or other activities that are not social or recreational gatherings." Id.
Mayor Elicker also declared a state of emergency on March 15, 2020. He issued an emergency order on March 19, 2020 stating that "gatherings of more than 10 people for social and recreational activities ... are prohibited." Emergency Order No. 4 at 2 (Mar. 19, 2020), https://documentcloud.adobe.com/link/track/?pageNum=1&uri=urn% 3Aaaid% 3Ascds% 3AUS% 3A399de22f-5c51-411f-9a15-9fd5fd6bb0b5; ECF No. 23 at 5 n.5.
Plaintiffs aver that Governor Lamont's and Mayor Elicker's orders "present a great hardship to our business as we are losing money to pay our expenses every day, and we are not even bringing in a small amount of revenue to offset our expenses." ECF No. 11-2 ¶ 9. Specifically, the Amato and Monsanto affidavits state that the Governor's "executive order commanding ‘non-essential’ businesses to cease their on-site operations has completely cut off my business's revenue stream as we can no longer operate as a restaurant and a bar while the order remains in effect." Id. ¶ 6. "If these orders are not stayed," according to the Plaintiffs, "our business will incur financial hardship to the point where we may need to furlough our employees without pay, terminate their employment for the foreseeable future, and ultimately close our doors for good." Id. ¶ 10.
Plaintiffs Amato and Monsanto also each aver that "Governor Lamont's executive order banning all gatherings of more than five people completely hinders me from physically associating with anyone besides my family, thus denying me the ability to meet with my friends, customers, and like-minded people while the order remains in effect." Id. ¶ 7. The Plaintiffs make an identical statement regarding "Mayor Elicker's ban on gatherings exceeding ten people." Id. ¶ 8.
"In the Second Circuit, the standard for issuance of a temporary restraining order ("TRO") is the same as the standard for a preliminary injunction." Fairfield Cty. Med. Ass'n v. United Healthcare of New England , 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff'd as modified sub nom. Fairfield Cty. Med. Ass'n v. United Healthcare of New England, Inc. , 557 F. App'x 53 (2d Cir. 2014). The standard the Plaintiffs must satisfy here requires them to show that they have suffered irreparable harm, that they have a clear or substantial likelihood of success on the merits, that the balance of equities tips in their favor, and that an injunction is in the public interest. Plaintiffs must show a likelihood of success on the merits—as opposed to the lesser showing of "sufficiently serious questions going to the merits to make them fair ground for litigation"—because they are challenging governmental action taken in the public interest under a statute. Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs. , 769 F.3d 105, 110 (2d Cir. 2014) ( ). The orders the Plaintiffs target were issued under statutory authority granting the Governor and the Mayor broad powers to deal with public health crises and other civil emergencies.4 In addition, Plaintiffs must show a "clear" or "substantial" likelihood of success on the merits—as opposed to just a likelihood of success on the merits—because the relief they seek would suspend existing orders and thus change the status quo, making the injunction they seek a "mandatory injunction" rather than just a "prohibitory injunction." N. Am. Soccer League, LLC v. United States Soccer Fed'n, Inc. , 883 F.3d 32, 37 (2d Cir. 2018) (...
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