By Jack Queen

Law360 (January 6, 2021, 8:52 PM EST ) A New York state court blocked a move by Erie County to close a laser tag facility over coronavirus concerns, saying that while "the fate of the Republic is not endangered should Lasertag not be permitted," county officials were shooting from the hip when they shut it down.

Judge Emilio Colaiacovo granted Lasertron Inc. a preliminary injunction blocking the Erie County Department of Health's shutdown order Monday, finding in a blistering opinion that health officials used a "cavalier" process and reached a conclusion that was "haphazard and devoid of logic."

"While it is understood that recommendations of those in the public health field should be given considerable weight, this does not mean that carte blanche is generously given to governmental authorities without redress or review," Judge Colaiacovo said.

Lasertron was shut down in October after being reclassified from a moderate risk sport or activity to a "place of public amusement," a category not exempt from the relevant COVID-19 closure guidelines.

Lasertron sued later that month, arguing the reclassification was arbitrary and capricious. It noted that a county health inspector had found its efforts to mitigate COVID-19 risk — including sanitizing all surfaces, reducing capacity below 50% and closing its arcade area — were "satisfactory."

The health department asked the Empire State Development Corporation for advice before ordering Lasertron to shut down, though according to the opinion it offered no explanation for why it deferred to the public-benefit corporation. The ESDC responded in a brief email to the county that Lasertron should be closed because it was a "place of amusement."

Judge Colaiacovo said it was unclear what authority or expertise the ESDC had to make the call. The agency submitted an affidavit from the state's epidemiology director, Debra S. Blog, in support of its decision, but Judge Colaiacovo dismissed it as "a lengthy history of the current pandemic and a self-laudatory examination" of the state's response to the crisis, adding that it was more "more appropriate for the classroom" than the courtroom.

"Dr. Blog's affidavit is replete with dismissive conclusions that, while perhaps of interest in academia, are of little comfort to businesses that are forced to see their source of income and support for their families, let alone that of their employees, vanish," he said.

Judge Colaiacovo found county officials failed to muster an adequate explanation for their decision, calling their responses to his questions "unavailing" and "perfunctory." He noted that the county had no evidence of a coronavirus case originating from Lasertron.

Judge Colaiacovo also said the shutdown could pose irreparable harm to Lasertron's business. While acknowledging laser tag was not critically important nor on par with religious services, he cited the U.S. Supreme Court's findings in the recent Roman Catholic Diocese of Brooklyn, New York v. Cuomo case regarding church closures in New York as grounds to check ESDC's "expansive and sweeping powers."

"The court must not shy away from performing their independent and constitutionally required role in reviewing the decisions of the state so as to ensure that government does not take its broad authority to a point of abuse," he said. "Judicial deference has its limits."

Counsel for the parties did not immediately respond to requests for comment Wednesday.

Lasertron is represented by J. Michael Lennon of Roach Lennon & Brown PLLC.

The ESDC is represented by George M. Zimmerman of the New York Attorney General's Office.

The Erie County Department of Health is represented by Erie County Attorney Michael A. Siragusa.

The case is In the Matter of Lasertron Inc. v Empire State Dev. Corp., case number 813573/2020, in the Supreme Court of the State of New York, County of Erie.

--Editing by Ellen Johnson. 

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