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Law360 (October 21, 2020, 11:07 PM EDT ) A New York City eatery asked the Second Circuit on Tuesday to block New York Gov. Andrew Cuomo's rule forbidding New York City restaurants from serving dine-in customers after midnight, arguing there is neither a real nor substantial relationship between the restriction and the public health interest.
The Graham, a bar and eatery near the city's Bushwick and Williamsburg neighborhoods, said in its motion unsealed Wednesday that U.S. District Judge Brian M. Cogan was incorrect in the way he applied the "real or substantial relation" test of Jacobson v. Massachusetts
earlier this month while declining to block the so-called "food curfew."In 1905, the landmark U.S. Supreme Court decision in Jacobson found that the state acted reasonably to protect public health when it allowed local health authorities to require smallpox vaccinations.
But Judge Cogan's finding that it is "common sense" that "if a restaurant is open 24 hours, it has a greater chance of exposing people to contagion [than] if it is ... open for 16 hours" misses the mark, The Graham said.
Under such an approach, literally any restriction subject to Jacobson would be allowed, the eatery said.
"For example, 'Only allow people out of their homes for 12 hours a day? It's common sense that having people be able to leave their homes for 24 hours would give them more chance to spread the virus than 12 hours,'" the eatery argued.
Jacobson requires a real and substantial relationship between the policy and the restriction, "not the speculative relationship proposed by the state, nor the insubstantial relationship adopted by the court below," The Graham said.
In the meantime, the restaurant said, its "business is dying."
The September lawsuit says the midnight service cutoff, announced Sept. 9, is "arbitrary and unsupported by anything except speculation" that kicking diners out of restaurants earlier than usual combats the spread of COVID-19.
Cuomo's office responded by saying the rule exists because "late-night service can encourage individuals to gather and mingle, increasing the risk of COVID transmission." But The Graham, which is incorporated as the Columbus Ale House, calls that logic unproven.
Earlier this month, Judge Cogan backed Cuomo's rule, saying the dangers of COVID-19 provide a rational basis for a curb that could prevent the spread of the deadly virus.
"I recognize that the plaintiff's business has struggled during the pandemic," Judge Cogan said.
But the state, not the courts, has police power and judges can't be in the habit of blocking such rules unless they are clearly irrational, Judge Cogan said.
"We all know that COVID-19 spreads more easily indoors," the judge said, although he also warned that such rules have the potential to "turn New York City into a very different, even desolate, place."
The restaurant is represented by the Law Office of Jonathan Corbett.
Cuomo is represented by Erin McAlister of the Office of the New York State Attorney General.
The case is Columbus Ale House v. Cuomo, case number 20-3574, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Pete Brush. Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
