Hopkins Hawley LLC v. Cuomo, 20-cv-10932 (PAC)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
PartiesHOPKINS HAWLEY LLC d/b/a SEAPORT HOUSE, THE GREATER NEW YORK MERCHANTS' ALLIANCE, and COSTIN TARSOAGA, on behalf of themselves and all others similarly situated, Plaintiffs, v. ANDREW CUOMO, in his personal and official capacity as Governor of the State of New York, THE NEW YORK CITY DEPARTMENT OF FINANCE, THE NEW YORK CITY SHERIFF'S DEPARTMENT, and BILL DE BLASIO, in his personal and official capacity as Mayor of the City of New York, Defendants.
Docket Number20-cv-10932 (PAC)
Decision Date09 February 2021

on behalf of themselves and all others similarly situated, Plaintiffs,
ANDREW CUOMO, in his personal and official capacity as Governor of the State of
official capacity as Mayor of the City of New York, Defendants.

20-cv-10932 (PAC)


February 9, 2021


In response to a second surge of COVID-19 infections, Governor Andrew Cuomo issued executive orders restricting restaurant dining across the state. Restaurants in New York must close at 10 PM and restaurants in New York City cannot serve customers indoors. The Plaintiffs, whose livelihoods depend on the restaurant industry, have suffered greatly from these restrictions. They have experienced substantial losses in revenue and are at risk of closing up shop permanently. They now seek a Preliminary Injunction enjoining Governor Cuomo's dining restrictions on the grounds that the restrictions violate the federal Constitution and that the public interest would be better served without them. For the reasons set forth below, these arguments are rejected and the Preliminary Injunction motion is DENIED.

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I. The COVID-19 Pandemic

The COVID-19 pandemic has caused innumerable human death and suffering in the state of New York. To date, more than 1.4 million New Yorkers have contracted the COVID-19 virus and more than 44,000 have died as a result. See New York Coronavirus Map and Case Count, N.Y. TIMES, https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html (updated Feb. 8, 2021). In New York City alone, over 27,000 people have succumbed to the virus. See United States COVID-19 Cases & Deaths by State, Ctrs. for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker (updated Feb. 7, 2021). At its peak, New York experienced "more coronavirus cases than any single country in the world." (Dr. Blog Decl. ¶ 74, ECF 40.)

With the aid of stringent public health measures, New York was able to successfully flatten the curve of infections during the summer of 2020. Beginning in the fall, however, the state confronted a second wave of infections. (See Dr. Varma Decl. ¶ 17, ECF 36.) In September, the state averaged a 50% increase in daily infections. (Id.) And that number continued to rise after the end-of-year holiday season. (Id. ¶¶ 17-18.)

II. The Dining Policy

In response to the second surge in COVID-19 infections, Governor Cuomo issued two executive orders that increased restrictions on restaurant dining across the state. These restrictions (the "Dining Policy") provide that:1

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E.O. 202.74: All restaurants in New York State must cease both indoor and outdoor dining at 10 PM, effective November 13, 2020.

E.O. 202.81: All restaurants in New York City must suspend indoor dining, effective December 14, 2020.

(See Schonfeld Decl. Exs. H & I ("Executive Orders"), ECF 34.)

The Dining Policy aims to slow the further spread of the COVID-19 virus. According to public health authorities, indoor dining increases the risk of COVID-19 transmission because of its poor ventilation and lack of social distancing, and the unmasked face-to-face exposure that occurs while eating and drinking. (See Dr. Blog Decl. ¶¶ 8-59; Dr. Varma Decl. ¶¶ 33-44.) Because respiratory droplets of the virus can spread through close contact with others as people cough, sneeze, talk or sing, public health experts have classified indoor dining as a higher-risk activity. (See Dr. Blog Decl. ¶¶ 11, 16; Dr. Varma Decl. ¶ 30.) In a report released last September, the Centers for Disease Control and Prevention (CDC) found that adults who dined out were approximately twice as likely to contract COVID-19 as those who did not. (Dr. Blog Decl. ¶ 26.) Additionally, experts also say the risk of transmission is further supplemented in a densely populated metropolis like New York City. (See Dr. Blog Decl. ¶¶ 34-38; Dr. Varma Decl. ¶ 28.)

The Dining Policy's 10 PM closure rule, which applies both to indoor and outdoor dining, also aims to reduce the spread of the COVID-19 virus. The rule is premised on the rationale that the later people stay out at restaurants, the more liquor their patrons consume,

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reducing their inhibitions and making them less likely to adhere to mask wearing and social distancing protocols. (Dr. Blog Decl. ¶¶ 44-52; Dr. Varma Decl. ¶ 37.)

III. Preliminary Injunction Motion

The Plaintiffs are a New York City restaurant, non-profit advocacy group, and restaurant worker2 whose livelihoods have been affected by the Dining Policy and COVID-19 pandemic at large. (Compl. ¶¶ 54-58, ECF 1.)

On December 25, 2020, the Plaintiffs filed this class action lawsuit against Governor Cuomo, and the New York City Department of Finance, the New York City Sheriff's Department, and Mayor Bill de Blasio (collectively, "City Defendants").3 (ECF 1.) On December 30, the Plaintiffs moved for a TRO and Preliminary Injunction seeking injunctive relief from the Dining Policy. (ECF 16.) After holding a telephonic conference on January 6, the Court denied the TRO application and ordered briefing on the Preliminary Injunction motion. (ECF 32.) The parties subsequently submitted additional briefing and the Court held oral argument on the Preliminary Injunction motion on January 21.

The Plaintiffs seek a Preliminary Injunction that would enjoin enforcement of the Dining Policy and (1) permit "bona-fide"4 New York City restaurants to operate at 50% indoor dining

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capacity and (2) allow all New York restaurants to be able to serve patrons until midnight.5 (See Pls.' Reply, at 7, ECF 44.) In support of their motion, the Plaintiffs allege that the Dining Policy deprives them of their Constitutional rights under the (1) the Fourteenth Amendment's Due Process Clause; (2) First Amendment; and (3) Dormant Commerce Clause. (Pls.' Br. at 8-11, ECF 17.) And they allege that issuance of the Preliminary Injunction will better serve the public interest and redress their irreparable harms. (Id. at 11-14.)

Governor Cuomo and the City Defendants oppose the Preliminary Injunction motion. They argue that under the Supreme Court's holding in the 1905 case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), state and local authorities must be granted substantial deference in addressing the COVID-19 pandemic. (State Br. at 12-14, ECF 41; City Br. at 9-13, ECF 35.) Alternatively, they contend that even if deference is not afforded, the Dining Policy withstands Constitutional scrutiny under a traditional doctrinal analysis. (State Br. at 14-21; City Br. at 13-24.) Finally, they argue that the Dining Policy is a necessary public health measure against the COVID-19 pandemic and therefore that the public interest factor weighs against granting injunctive relief. (State Br. at 23-25; City Br. at 25-26.)

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Separately, the City Defendants contend that they play a minor role in forming the restrictions Plaintiffs complain of and that, under Governor Cuomo's executive orders, they are required by law to adhere to the Dining Policy.6 (City Br. at 8.)


I. COVID-19 and Judicial Review

The Court must first address what standard of judicial review to apply to the Plaintiffs' Constitutional claims. Since the start of the COVID-19 pandemic, many courts have cited the Supreme Court's 1905 decision in Jacobson v. Massachusetts and deferred substantially to state and local authorities with respect to their COVID-19 policies. But recent decisions from the Supreme Court and Second Circuit have placed Jacobson's relevance into question.

A. Jacobson and Its Progeny

In Jacobson v. Massachusetts, the Supreme Court addressed the Constitutionality of a Massachusetts law which required mandatory vaccination in response to the ongoing smallpox pandemic. 197 U.S. at 25. Plaintiff Henning Jacobson, who was subject to the mandatory vaccination law, sued the state of Massachusetts alleging that his substantive due process right to bodily integrity was being interfered with. Id. at 13-14. Justice Harlan, speaking for the Court, rejected Jacobson's claim, and held that in times of public health crises, a state or local law "enacted for the public health" would only be struck down if it had "no real or substantial

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relation to [the public health] or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Id. at 31 (emphasis added).

Over a century later, Chief Justice Roberts built on Jacobson's deferential framework in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020). In a concurring opinion denying injunctive relief to California churches against Governor Newsom's COVID-19 restrictions, the Chief Justice wrote:

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).

South Bay, 140 S. Ct. at 1613 (cleaned up).

The Supreme Court's opinion in Jacobson and the Chief Justice's concurrence in South Bay can be read in differing ways. Read narrowly, the decisions suggest that courts should take a somewhat deferential approach to Constitutional issues that arise from the COVID-19 pandemic. Read broadly, however, the decisions support the proposition that during times of public health crises, the full panoply of Constitutional rights ought not apply and instead, that Jacobson's deferential legal standard must govern.

Various federal courts in New York have adopted the latter reading of Jacobson and South Bay, and rejected Constitutional...

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