Catering business owners will gather in Hauppauge today to appeal to Gov. Andrew Cuomo to revise public health policy to allow them to operate their facilities at 50% capacity, rather than the 50-person limit that currently applies to gatherings and events.
Riverhead Councilwoman Jodi Giglio, a Republican candidate for State Assembly in the Second District, is organizing today’s gathering.
“Catering facilities have been brought to the brink of bankruptcy with no cash flow since March and living on loans,” Giglio said. “They must be allowed to open at 50% capacity.”
After declaring a statewide disaster emergency on March 7, Governor Andrew Cuomo issued a series of executive orders, at first banning all gatherings of any size and later gradually relaxing the restrictions, region by region, as community spread of the novel coronavirus abated.
The governor’s Executive Order No. 202.45, issued on June 26 — which has been extended three times and currently expires on Oct. 19 — allows “non essential” gatherings of 50 or fewer individuals “for any lawful purpose or reason” in regions of the state in Phase Four of the New York Forward reopening plan.
Indoor gatherings are limited to the lesser of 50 people or 50% of the maximum occupancy for a particular indoor area. Requirements for social distancing, face covering, and cleaning and disinfection protocols are mandatory.
Giglio called the state’s 50-person limit “arbitrary” because it applies regardless of a facility’s size or capacity.
“Facilities with the capacity for 300, 500 and 700 guests are being forced to operate as if they were all the same size,” she said.
The state has acted aggressively to enforce COVID restrictions imposed on bars and restaurants, using a multi-agency task force to conduct thousands of compliance checks. As of Thursday, the State Liquor Authority has summarily suspended the liquor licenses of 217 businesses for alleged lack of compliance with COVID restrictions.
On Tuesday, the governor announced 16 new emergency summary suspensions imposed by the State Liquor Authority, including four on Long Island. Among them was Giorgio’s in Baiting Hollow, where state investigators on Sept. 25 observed 95 patrons mingling at a wedding reception at the premises — nearly twice the legal limit — and most wore no face coverings, according to a press release from the governor’s office. The caterer’s liquor license was summarily suspended the following day.
Giglio said caterers have a large impact on the local economy, with many “secondary businesses” dependent on New York’s catering industry — bakeries, bridal and tuxedo shops, hotels, DJs, florists, photographers and videographers, musicians and transportation businesses among those that support the industry — also suffering.
The trickle-down effect of these restrictions is immense, Giglio said. Restrictions decimated the summer tourism season when they should have been allowed to operate safely, she said.
Caterers “are going bankrupt and need to feed their families,” the councilwoman said. “We need the governor to let them safely serve their customers, put their employees back to work and pay their bills,” she said.
In two federal lawsuits filed by caterers this summer, caterers complain that they that despite being similarly situated to restaurants, which the state allows to operate at 50% capacity, they are limited to just 50 people.
In both federal lawsuits — one filed in the U.S. District Court for the Western District of New York and the other filed in the Northern District — lawyers for the state argued that the events typically hosted at catering halls are fundamentally different from typical restaurant outings.
Events at catering halls are more typically what the state calls “super-spreader” events, where guests are generally family and friends who all know each other and closely interact and mingle together, while restaurant-goers, other than the immediate party, are generally strangers who don’t mix with one another, according to declarations filed in both lawsuits by New York State Commissioner of Health Dr. Howard Zucker.
The first of the caterers’ federal lawsuits, filed in Buffalo on Aug. 14 (Luke’s Catering Service et al v. Cuomo) was dismissed last week. U.S. District Court Judge William Skretny ruled that the governor’s executive order satisfies constitutional requirements and must be upheld.
“The grim fact is that New York and the rest of the world are engaged in a global battle to stave off COVID-19,” the judge wrote in a 32-page decision signed Sept. 10 and entered Sept. 25, after the expiration of a 14-day period allowing plaintiff’s time to amend their complaint.
The court cited the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts, which held that the state in the exercise of its police power has the authority reasonably necessary to “guard and protect” public health and public safety.
Under Jacobson, the court said, it is the state’s role “to determine and implement, with wide latitude, such emergency measures as it deems reasonably necessary to protect the public welfare.” The court would usurp the state’s police power and the function of another branch of government “if it were to engage in Monday-morning-quarterbacking or substitute its judgment for that of the state’s.”
The second lawsuit, in which one of the lead plaintiffs is a Long Island caterer, is a class action filed on Aug. 28 in federal district court in Syracuse. The court heard arguments Sept. 11 on the caterers’ motion for an injunction to block enforcement of the 50-person limit and on the state’s motion to dismiss. A decision is pending.
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