Bimber's Delwood, Inc. v. James, 20-CV-1043S

Decision Date21 October 2020
Docket Number20-CV-1043S
Citation496 F.Supp.3d 760
Parties BIMBER'S DELWOOD, INC., Bison Billiards, Inc., Five Star Lanes, Inc., Four Aces Bar & Grill, Karate Ken's, Ltd., Pharaohs GC, Inc., Soonertunes Productions, The Body Shop Gentlemen's Club, Inc., and The Cowboy of Chippewa, Inc., Plaintiffs, v. Letitia A. JAMES, in her official capacity as the Attorney General for the State of New York, Andrew M. Cuomo, in his official capacity as Governor of the State of New York, New York State Assembly, and New York State Senate, Defendants.
CourtU.S. District Court — Western District of New York

Steven M. Cohen, HoganWillig, Getzville, NY, for Plaintiffs.

George Michael Zimmermann, Office of the New York State Attorney General, Buffalo, NY, for Defendants.


WILLIAM M. SKRETNY, United States District Judge


In this case, nine area businesses challenge and move to enjoin New York Governor Andrew M. Cuomo's Executive Orders issued in response to the COVID-19 outbreak. Defendants oppose Plaintiffsmotion for injunctive relief and move to dismiss each of their claims. Because this Court finds that Plaintiffs have failed to demonstrate that the challenged Executive Orders likely fall outside the State's valid exercise of its police powers, Plaintiffsmotion for a temporary restraining order and preliminary injunction will be denied, Defendantscross-motion to dismiss will be granted, and Plaintiffs will be afforded leave to file a second amended complaint.


The nine plaintiffs are local businesses. Seven of them are bars or restaurants that offer live music and are licensed to serve alcohol: Bimber's Delwood, Inc.; Bison Billiards, Inc.; Five Star Lanes, Inc.; Four Aces Bar & Grill; Pharaohs GC, Inc.; The Body Shop Gentlemen's Club, Inc.; and The Cowboy of Chippewa, Inc. (Amended Complaint, Docket No. 5, ¶¶ 5-8, 10, 12, 13, 25, 26.) Of these seven, four explicitly offer some form of entertainment: Bison Billiards is a billiards hall; Five Star Lanes is a bowling alley; Pharaohs and The Body Shop provide exotic dancing. (Id. ¶¶ 6, 7, 10, 12, 26, 27.) The two other plaintiffs are Karate Ken's, Ltd., a martial arts school, and Soonertunes Productions, an entertainment company that provides disc jockey and karaoke services. (Id. ¶¶ 9, 11, 28, 29.)

Defendants Andrew M. Cuomo and Letitia A. James are the Governor and Attorney General of the State of New York, respectively. (Id. ¶¶ 14, 15.) James is alleged to have interpreted, ratified, and enforced Governor Cuomo's Executive Orders. (Id. ¶¶ 30, 31, 33.) They are each sued in their official capacity. (Id. ¶¶ 30, 31.) The other two defendants are the New York State Senate and New York State Assembly. (Id. ¶¶ 16, 17.)

A. Plaintiffs’ Amended Complaint

Plaintiffs’ amended complaint comes against the backdrop of the COVID-19 epidemic and the State's response to it. COVID-19 is a novel, potentially lethal respiratory disease 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). It spreads rapidly by person-to-person transmission, and it has caused an epidemic the likes of which has not been seen in this country since 1918. New infections and more deaths occur daily. There have been 488,506 cases and 25,679 deaths in New York alone,1 with more than 200,000 deaths nationwide and 1 million deaths worldwide.

In early 2020, the New York legislature recognized COVID-19 as an imminent public-health crisis. In response, it passed Senate Bill S7919 on March 2, 2020, which amended §§ 20 and 29-a of the New York Executive Law to provide Governor Cuomo the legal authority necessary to confront this public-health emergency. The legislature found such action necessary "to allow New York to manage, prepare, respond to, and contain" the threat posed by the coronavirus and to "respond with appropriate action to protect public health and welfare." See S.B. S7919, 2020 Leg. (N.Y. 2020). As amended, § 29-a authorizes the governor, inter alia , to temporarily suspend laws and issue Executive Orders as necessary to assist in coping with a declared state disaster emergency. See N.Y. Exec. L., Art. 2-B, § 29-a (1).

The rapid spread of COVID-19 soon caused Governor Cuomo to declare a state disaster emergency 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);2 Proclamation No. 9994, 85 Fed. Reg. 15,337 -38 (March 13, 2020); Amended Complaint, ¶ 47. Governor Cuomo then began issuing Executive Orders pursuant to § 29-a that limited many facets of everyday life in New York, including restricting the operation of businesses holding liquor licenses, imposing capacity-based restrictions on certain venues, limiting large gatherings, limiting entertainment activities such as billiards and bowling, and restricting food and beverage services. (Amended Complaint, ¶¶ 25, 40, 44, 48, 54-59, 61-65, 84.)

In late April 2020, Governor Cuomo announced a plan for phased re-opening of New York businesses called "New York Forward." (Id. ¶ 49.) Under this plan, certain sectors and industries with the greatest economic impacts and inherently low risks of infection were permitted to re-open and certain restrictions were loosened on a regional basis, in line with risk-of-infection rates. (Id. ¶¶ 41, 49, 50.)

On June 16, 2020, the Western New York region, where Plaintiffs are each situated, entered Phase 3 of the "New York Forward" plan, which allowed, among other things, restaurants and bars to re-open with restrictions. (Id. ¶¶ 51-53, 57.) Those restrictions initially provided for only outdoor dining and imposed open-container monitoring obligations. (Id. ¶¶ 54, 58.) Indoor dining was thereafter permitted under strict guidelines, including social distancing, mask wearing, and other coronavirus-related protocols. (Id. ¶¶ 56-58.) Restrictions also applied to alcohol service, including requiring that a food item be purchased with any alcoholic beverage to reduce the congregation and mingling that arise in a typical bar setting. (Id. ¶¶ 61-63.)

Plaintiffs maintain that Governor Cuomo's Executive Orders are illegal. They allege that the Orders violate the separation-of-powers doctrine (id. ¶¶ 32-34, 36, 37, 39, 93); that § 29-a, as amended, is unconstitutional (id. ¶ 93); that Governor Cuomo has been "unlawfully legislating from the Executive Chamber" and has "taken over the role of the [legislature]" (id. ¶¶ 33, 39); that the New York State Senate and New York State Assembly have "attempted to delegate non-delegable legislative authority to a single executive" (id. ¶¶ 37, 85, 86, 91, 93); and that Attorney General James has failed to fulfill her obligation to enforce the laws by "permit[ing], ratif[ying], fail[ing] to oppose, and fail[ing] to contest" the separation-of-powers violations (id. ¶¶ 32, 33).

Plaintiffs complain that Governor Cuomo has issued more than 59 Executive Orders "without review, debate and careful consideration of both houses of the New York State Legislature, all with the imprimatur of [Attorney General James]." (Id. ¶¶ 34, 39, 84.) They further allege that by engaging in these unlawful acts, Defendants have violated their oaths of office and have "permitted the State of New York to take on the governmental attributes of a monarchy." (Id. ¶¶ 36, 37, 39, 84.)

So too, Plaintiffs allege that the Executive Orders, including the "phase in" schedules, are "vague, inconsistent, and contradictory," and have unduly and profoundly ceased, curtailed, limited, or devastated their business operations, causing "operational chaos." (Amended Complaint, ¶¶ 5-13, 30, 31, 38, 41-43, 46, 77, 94.) As an example of inconsistency, Plaintiffs allege that restaurant and bars are included in the phased reopening plans, but bowling alleys,3 billiard halls, and physical fitness studios and gyms are not. (Id. ¶¶ 41, 51.)

Plaintiffs also challenge the need for and efficacy of the government-mandated precautions. (Id. ¶ 82.) They allege that the State-imposed safety precautions are "based upon medical disinformation, publicized by an agenda-driven media conglomerate of news networks and complicit journalists." (Id. ¶ 103.) They maintain that social distancing is "absurd" and makes it "virtually impossible" to run their businesses. (Id. ¶ 101.) They further allege that "keeping customers and employees six (6) feet apart render[s] [their] businesses unworkable" and poses an "insurmountable dilemma." (Id. ¶ 102.) Plaintiffs insist that they should instead be permitted to exercise their own judgment in establishing safety and health protocols in the best interests of their employees, patrons, and other visitors, without government intervention. (Id. ¶¶ 82, 83.)

Nonetheless, the restaurant and bar plaintiffs allege that they are complying with the government mandates and are operating their businesses according to the regulations as they understand them and in a manner that exceeds the State-imposed safety protocols and restrictions. (Id. ¶¶ 46, 59, 68, 69, 102.) They are doing so with the goal of returning to profitability, but also under "constant fear" and "constant threats" of being shut down by governmental agencies. (Id. ¶¶ 45, 46, 69.)

Pharaohs and The Body Shop, however, allege that they are not permitted to fully re-open because exotic dancing is prohibited.

(Id. ¶¶ 67, 70, 74.) The Body Shop has thus been closed since early March 2020; Pharaohs closed in July 2020, but has tried to re-open on a limited basis to salvage its business. (Id. ¶¶ 70, 71.)

B. The State's Justification for the Executive Orders

Defendants have submitted the Declaration of Elizabeth M. Dufort, M.D., FAAP, Medical Director of the New York State Department of Health, Division of Epidemiology. (Declaration of Elizabeth M. Dufort, M.D., FAAP (...

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