Dixon v. De Blasio

Decision Date10 October 2021
Docket Number21-cv-5090 (BMC)
Citation566 F.Supp.3d 171
Parties Shaw-Nae DIXON, Thomas Casatelli, Jeanette Rivera, Natalia Yakubova, Chris King, Alison Marchese on behalf of AM, JM, and MMV (her minor children), William Morris, George Kabbez, Mary Josephine Generoso, Shaw-Nae's House, LLC, Salty Dog Restaurant, LTD, Per Tavern Corp. d/b/a The Kettle Black, Cargostork Parties, Inc. d/b/a Do Me a Favor, and Independent Restaurant Owners Association Rescue, Inc., Plaintiffs, v. Bill DE BLASIO, Mayor of New York City, in his official capacity, and The City of New York, Defendants.
CourtU.S. District Court — Eastern District of New York

Ronald A. Berutti, Weiner Lesniak, LLP, Parisppany, NJ, for Plaintiffs.

Thomas Casatelli, Staten Island, NY, Pro Se.

Jeanette Rivera, Staten Island, NY, Pro Se.

Natalia Yakubova, Rego Park, NY, Pro Se.

Chris King, Staten Island, NY, Pro Se.

Alison Marchese, Staten Island, NY, Pro Se.

William Morris, Staten Island, NY, Pro Se.

George Kabbez, Brooklyn, NY, Pro Se.

Mary Josephine Generoso, New York, NY, Pro Se.

Shaw-Nae's House, Staten Island, NY, Pro Se.

Salty Dog Restaurant, Brooklyn, NY, Pro Se.

Per Tavern Corp. d/b/a The Kettle Black, Brooklyn, NY, Pro Se.

Cargostork Parties, Staten Island, NY, Pro Se.

Independent Restaurant Owners Association, Pro Se.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Plaintiffs seek a preliminary injunction barring the enforcement of three New York City Emergency Executive Orders ("EEOs 225, 226, and 228") issued by the Mayor of the City of New York. With limited exception, the EEOs require "covered entities" to prevent individuals who have not received a COVID-19 vaccine from remaining in certain indoor facilities for prolonged periods of time. Plaintiffs claim this violates their Thirteenth and Fourteenth Amendment rights, as well as constituting an uncompensated taking and a violation of New York State law.

Plaintiffs’ requested preliminary injunction is denied because they are unlikely to succeed on the merits.

BACKGROUND
I. Factual Background

The novel coronavirus, SARS-CoV-2, and its associated disease, COVID-19, need little introduction. The virus has infected approximately 1.1 million people and killed over 34,000 in New York City alone.1 At the height of the pandemic in New York City, over 18,000 people were hospitalized, and 800 people died per day.2

COVID-19 transmission increases when people are in close contact because the virus spreads through contact, respiratory droplets, and aerosols.3 Airborne transmission of the virus, in which the infection spreads through exposure to small droplets and particles that can remain suspended in the air for hours, is more likely to occur in enclosed spaces and with prolonged exposure.

In mid-December 2020, the FDA issued an emergency use authorization for two COVID-19 vaccines developed by Pfizer and Moderna.4 Then, on March 1, 2021, Johnson & Johnson also released a third COVID-19 vaccine.5 At present, approximately 56% of the United States is fully vaccinated against the virus.6 In New York City, the vaccination

rate among residents is higher – 64%.7

However, the vaccines are not a complete protection against the disease.8 Additionally, with the large number of unvaccinated individuals remaining, there is a risk that any one hospital system could be placed under stress by a surge in cases.9 Approximately 54% of hospitals in the United States are currently under high or extreme stress due to an influx of COVID-19 hospitalizations.10 This risk is compounded by the rise of COVID-19's Delta variant, which has been found to be the cause of a recent increase in cases.11

Among unvaccinated individuals, early data also suggests that the Delta variant is more likely to cause severe infections.12

In response to the rise in Delta variant cases, between August 16, 2021, and August 25, 2021, the Mayor of New York City signed EEOs 225, 226, and 228. These EEOs state that "covered entities" "shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premise without displaying proof of vaccination

and identification bearing the same identifying information as the proof of vaccination." Id. at § 4(b). The EEOs define "covered premises" as "Indoor Entertainment and Recreational Settings,"13 "Indoor Food Services,"14 and "Indoor Gyms and Fitness Settings."15 "[H]ouses of worship or locations in a residential or office building the use of which is limited to residents, owners, or tenants" are not "covered premises." Id. at § 4(f)(3)(iv). Relatedly, a "covered entity" "means any entity that operates one or more covered premises." Id. at § 4(f)(2).

EEO 228 § 4(c) outlines three exceptions to the § 4(b) provision. First, individuals lacking proof of vaccination

can enter covered premises for a quick and limited purpose (for example, using the restroom or picking up an order). Id. at § 4(c)(1). Second, an unvaccinated nonresident and nonregular performing artist and nonresident individuals accompanying that artist can enter otherwise covered premises for prolonged periods to perform in the premises. Id. at § 4(c)(2). Third, a nonresident professional sports team and nonresident individuals accompanying that team can enter an otherwise overed premises to engage in athletic competition. Id. at § 4(c)(3). However, even in these situations, individuals who lack proof of vaccination must still either maintain a six-foot distance between themselves and others or always wear a face mask. Id. at § 4(c).

Under the EEOs, any person or entity that violates these provisions is subject to a fine, penalty, and forfeiture of at least $ 1,000. Id. at § 4(j)(1). If that individual or entity violates the EEOs’ provisions a second time within a twelve-month period, the minimum fine is $ 2,000. Id. For each violation that occurs within a twelve-month period after the second violation, the fine is at least $ 5,000. Id. Although almost all the EEOs’ requirements became effective immediately, this penalty provision only took effect on September 13, 2021. Id. at § 6.

II. Procedural Background

Plaintiffs are individuals, businesses, and a business association. Together, they assert a plethora of reasons why the City should be enjoined from enforcing the EEOs. First, they maintain that the EEOs violate their rights as stated in the Fourteenth Amendment's Equal Protection clause. This is because plaintiffs believe the EEOs were promulgated by the Mayor with the specific intent to harm the liberty interest of African Americans and Hispanics. Second, plaintiffs contend the EEOs violate their Fourteenth Amendment substantive due process rights and the First Amendment because the EEOs infringe on the following liberty interests: freedom of religion, freedom of bodily health and integrity, freedom of association, freedom to pursue a private professional career of one's choice, and freedom to raise one's children. Third, plaintiffs argue that the EEOs have unconstitutionally impressed them into executing the Mayor's edicts without just compensation, thus violating the Thirteenth Amendment. Fourth, plaintiffs assert that the EEOs are also a taking that will cause irreparable damage to their businesses without just compensation. Fifth, plaintiffs reason that the Mayor lacks the legal authority under New York law to issue and enforce these EEOs. Finally, plaintiffs argue that the EEOs violate the Fourteenth Amendment's Privileges and Immunities Clause.

DISCUSSION

The elected chief executive of New York City has the authority to act decisively to ensure the City's safety during a public health crisis. Thus, although plaintiffs’ constitutional claims demonstrate de facto the potential for irreparable harm, the underlying merits of plaintiffs’ claims and the equities at stake do not meet the high bar required for this Court to issue a preliminary injunction. See Winter v. Nat. Res. Def. Couns., Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ("In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) )).

In this Circuit, "[a] party seeking a preliminary injunction must generally show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party's favor, and that an injunction is in the public interest." Am. C.L. Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (internal quotes and citations omitted). "In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm." Ferreyra v. Decker, 456 F. Supp. 3d 538, 549 (S.D.N.Y. 2020) ; see also Statharos v. N.Y.C. Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999). Because plaintiffs allege that several of their constitutional rights have been violated, "no further showing of irreparable injury is necessary." Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Therefore, this analysis focuses primarily on each claim's likelihood of success on the merits.

I. Equal Protection

Plaintiffs’ equal protection claim fails because they have not shown that the EEOs target a protected class, are the result of animus, or are not rationally related to a legitimate government interest. Unless a statute or state action provokes "strict judicial scrutiny because it interferes with a fundamental right or discriminates against a suspect class, it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose." Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457–58, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988) (internal quotes and citations omitted).

To demonstrate an equal protection violation, plaintiffs must show that a government actor intentionally...

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