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  • Writer's pictureDaniel Schneider

NYC’s covid 19 closures: permissive indoor dining anywhere compels it everywhere

Photo by Kelly Sikkema on Unsplash

Amid the economic disaster of COVID-19, New York City restaurants attempt to survive under unreasonable and unconstitutional conditions. If New York City is to remain a culinary capital of the World, the City and the State must allow NYC restaurants to operate under the same conditions as every other restaurant in the State, and lift the unduly burdensome requirements causing city-wide forced closures.

That said, a short disclaimer: Nothing contained in this article should be construed, in any way, as discounting the seriousness of the COVID-19 pandemic or the health consequences flowing from it. My viewpoint, as it relates to the right of New York City restaurants to offer and provide indoor dining, rests purely on constitutional grounds. I am, by no means, encouraging patrons to start occupying enclosed spaces in large numbers; rather, I am asserting that all restaurants in New York State must be treated the same in the law —currently, they are not. I also sound the alarm that balancing the interests of public health and economic stability is more critical than ever. History has taught that an economic depression can also cost many thousands of lives; citizens must emerge from their political corners and consider both issues in context.

On or about July 6, 2020, at the commencement of Phase 3, indoor dining returned to New York State in each and every county only with the exception of the five counties/boroughs which comprise New York City. In the City, the interiors of restaurants continued to be shuttered and have been since.

The only difference between the restaurants permitted to provide indoor dining and those that are not is geographical location. There is no indication that New York City restaurants could not follow the strict guidelines for indoor dining—it was not even tried prior to carving the City out of the Phase 3 plans.

This is unconstitutional.

It violates both the Equal Protection Clause and the Due Process Clause of the 14th Amendment (the “14th Amendment”) to United States Constitution. While there have been some rulings in the State’s favor about COVID-19 related restrictions, this rule is distinct and distinguishable. In most other cases, all of the rules applied to the affected industry equally, however, in this case, one group of an industry is being singled out with no specific reason given for this different treatment.

Police Power During Health Emergencies

No one on either side of this issue can deny that we’re in a health emergency—and not the first in this nation’s history. The precedent that COVID-19 era cases have been looking to is Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). The United States Supreme Court in that case declared the state’s police power to be broad, but not limitless. If a rule “enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” id. at 34, then it may be held unconstitutional by the Court. It continued by holding that exercise of police power, regardless of the level of government, which “arbitrary and oppressive,” id. at 38, must be struck down.

It may be that the New York State Government was within its police power to impose many of the restrictions that it did. See e.g. Ass’n of Jewish Camp Operators v. Cuomo, 20-CV-0687, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 3766496 (N.D.N.Y. July 6, 2020) (Suddaby, C.J.). However, carving out New York City restaurants and treating them differently from the rest of the state is “arbitrary and oppressive.”

It’s oppressive in that NYC restaurants, with higher rents and overhead, are being denied revenue streams that others in the State enjoy. This rule is quite literally endangering New York City as a culinary destination. It is arbitrary in that it was without any sound justification as to why NYC should receive different treatment from the rest of the State. Therefore, the rule exceeds the police power of the government as defined in Jacobson, and should not be permitted to stand.

The Equal Protection Clause

The Equal Protection Clause of the 14th Amendment forbids a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” It is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

While New York City restaurants are not alleging discrimination on the basis of race, gender or any protected class, “the equal protection guarantee ... extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). Therefore, these protections apply to such a group.

The State is violating the Equal Protection Clause because it is not treating all restaurants in the State alike. As discussed above, for some undeclared reason, indoor dining has returned outside of NYC, but the City’s indoor spaces remain closed.

Attempts to justify the law by claiming NYC is a transportation hub is insufficient. New York State has imposed quarantine requirements from those coming in from out of State which address that issue. Citing that NYC is more populous is also unpersuasive. Its restaurants will be required to follow the same rules as everyone else, even in the context of their less square footage than other parts of the State. Since indoor dining has not been tried, there is no evidence that NYC restaurants would be less effective in enforcing or more apt to ignore the rules. Finally, the statistics show NYC’s infection rate is no higher than that outside the boroughs. There is no compelling reason for this distinction which can pass constitutional muster.

The essence of an equal protection claim, which may be enforced via a claim pursuant to 42 U.S.C. §§ 1981 and/or 1983, is that a plaintiff is treated differently than a similarly situated comparator for impermissible reasons. See e.g. Hu v. City of New York, 927 F.3d 81, 91-93 (2d Cir. 2019). As a result, “Equal Protection claims require a showing that the plaintiff was treated differently from another similarly situated comparator.” Id. at 93. This requirement should not pose a significant obstacle to NYC restaurants since all that need be pointed to are eating establishments outside of New York City which can provide indoor dining.

Though beyond the scope of this discussion, it is worth noting that there are two separate theories of equal protection, each of which have their own standard of similarity that a comparator must meet. Id. at 91-93. Even at the heightened standard, which requires the comparator to be “prima facie identical,” id. at 92, as opposed to the lower standard which requires that “the plaintiff's and comparator's circumstances must bear a reasonably close resemblance,” id. at 93, finding a comparator, in light of the volume and breadth of restaurants in New York City and outside, should not be difficult.

For instance, there is an Italian restaurant on Hillside Avenue in Queens Village, New York, in Queens County which cannot provide indoor dining. Conversely, another Italian restaurant with a similar menu and prices, on Hempstead Turnpike, Elmont, New York, one town over, but in Nassau County, outside of the New York City limits, can open its doors to customers. These restaurants are essentially the same, they cater to the same clientele, they are in the same type of neighborhood. They are prima facie identical. Yet one is open while the other is not.

There have been numerous test cases, but only one, thus far, in this realm has broken through and received short term relief. In DiMartile v. Cuomo, 20-CV-0859, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 4558711 (N.D.N.Y. August 7, 2020) (Suddaby, C.J.) the Court granted a preliminary injunction challenging a rule a wedding venue capacity limit of 50 people. Plaintiff in that case argued that it operated like a restaurant and that as long as social distancing was adhered to, restaurants were not limited to 50 patrons. The Court held that restaurants were sufficiently similar and granted a preliminary injunction stating, “the Court can find no rational basis for this State’s difference in treatment between use of the venues in question for ordinary dining and use of those venues for weddings.” Id. at * 10.

Similarly, there is no rational basis, which is legally required, see Gregory v. Ashcroft, 501 U.S. 452, 470 (1991), for the State’s difference in treatment between those in New York City and those outside. Therefore, this prohibition, which is limited to NYC restaurants only, must be set aside.

Due Process Clause

Moreover, the Due Process Clause prohibits a state from “depriv[ing] any person of life, liberty, or property, without due process of law.” Restaurants in NYC received no due process, i.e., notice or a hearing, before having their right to operate stripped, the received no process when restaurants outside of New York City were permitted to reopen while they remained shuttered and they have received no post deprivation remedy, i.e. an ability to challenge their closure and to prove that they can follow the guidelines. Therefore, their due process has been violated.

In alleging a due process claim, a plaintiff must show a deprivation of a property or liberty interest and thereafter must allege what process is due. Nnebe v. Daus, 931 F.3d 66, 80 (2d Cir. 2019). It is beyond dispute that a restaurant and ownership thereof constitutes a property interest. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571–72 (1972). The right to operate one’s business is a liberty interest since all have a right to seek their fortunes in whatever sector they choose, which is referred to in the law as engaging in “the common occupations of life.” Chafly v. Turoff, 804 F.3d 20, 22 (2d Cir. 1986). Therefore, this threshold issue is present.

In determining what process is due, courts look at: “(1) “the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and (3) the Government’s interest, including the ... fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail.” Nnebe v. Daus, 931 F.3d 66, 80 (2d Cir. 2019). With respect to the first prong, the interest is catastrophic. Prohibiting indoor dining severely reduces or extinguishes a restaurant’s ability to operate even at a reduced capacity. This will not only significantly affect the private interests of the owners, but all of the employees who are affected.

With regard to erroneous deprivation, NYC restaurants never even got the chance to show that they could follow the rules, so arguably, each and every one of them has been found guilty without a hearing and therefore have suffered erroneous deprivation. Finally, the government has provided no known reason for treating NYC restaurants differently without any sort of process. Therefore, it is impossible to assess the government’s interest. It has not even provided a method of post-deprivation relief—a procedure for affirmatively showing the state that restaurants can follow the guidelines for indoor dining. Though it would also be unconstitutionally disparate treatment than restaurants outside of New York City, it would at least provide an avenue to operation. See e.g. Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006).


While the above analysis is not exhaustive, Farber Schneider Ferrari LLP believes that the State is acting impermissibly by treating New York City restaurants differently than the rest of the State. Therefore, restaurants are encouraged to band together to bring an action and compel the State to change its policies to allow indoor dining in the greatest city in the world. For more information, please call us at 646-531-1831.



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