Buffalo Businesses File Federal Suit Against State

A federal lawsuit by several Buffalo-area businesses makes familiar arguments against Gov. Andrew Cuomo’s business-limiting executive orders as well as a novel claim — that the governor is violating the First Amendment freedom of expression of exotic dangers by keeping gentleman’s clubs closed while allowing singers and bands to continue performing.

Bimber’s Delwood Inc., Bison Billiards Inc., Five Star Lanes Inc., Four Aces Bar and Grill, Karate Ken’s Ltd., Pharoahs GC Inc., Soonertunes Productions, the Body Shop Gentlemen’s Club Inc. and The Cowboy of Chippewa Inc. are suing Cuomo, the state Senate, the state Assembly and Letitia James, state attorney general, over the shutdowns and limitations placed on restaurants.

The lawsuit’s allegations include that changes the state Legislature made in April to Executive Law Section 29-A are unconstitutional, that the state has violated the Executive Law because Cuomo’s measures aren’t justified by COVID-19, that free speech has been violated by banning exotic dancing, that the plaintiffs’ due process rights have been violated because there is no way to challenge the language or meaning of executive orders, that the shutdowns are an unconstitutional taking of property without just compensation in violation of the Fifth Amendment and that the executive orders violate the 14th Amendment’s Equal Protection Clause by treating similar businesses differently.

“Defendants, in a disturbing and gross abuse of their power, have, in the name of the COVID-19 pandemic, attempted to expand their authority by unprecedented lengths, without any proper constitutional, statutory or common law basis therefor,’ attorneys Steven M. Cohen and Corey J. Hogan, of the Amherst firm HoganWillig wrote in the complaint. “Inherent within the actions of all defendants is the flawed yet asserted justification that a national emergency suspends the constitutions of the United States and the state of New York.”

The lawsuit takes aim at Cuomo for issuing roughly 50 executive orders that the businesses say have combined to harm their livelihoods, at James for failing to contest any of the executive orders and at the Senate and Assembly for refusing to limit Cuomo’s executive authority. Cuomo’s orders have mandated either the total or partial suspension of the plaintiffs’ businesses while inconsistent phase-in schedules have allowed some businesses to open while others have remained closed or partially open.

Cohen and Hogan argue that many of the restaurants have implemented protocols and procedures that are more stringent than the state requires yet operate under the threat of fines and closures while the Body Shop never reopened. Pharoahs closed in July due to prohibitions on exotic dancing but has attempted to reopen to avoid closing for good.

“Defendants’ arbitrary, capricious and unreasonable rule has eviscerated plaintiffs’ Pharoahs’ and Body Shop’s First Amendment rights, as well as the rights of independent contractors, including dancers, employed by plaintiffs Pharoahs and Body Shop,” Cohen and Hogan wrote. “Defendants’ actions in previously shutting down all establishments, including those with liquor licenses, significantly and adversely affected the finances of plaintiffs. Further, defendants’ targeted shut down of establishments, including plaintiff Body Shop, constituted an unlawful content based restriction on a form of expression afforded protection under the First Amendment to the U.S. Constitution and Article 1 of the New York State Constitution.”

Additionally, Cohen and Hogan argue that there is a structural separation of powers and doctrine of nondelegation that are being violated by Cuomo, James and the state Legislature, which is how the lawyers and businesses allege the state’s actions violate the 14th Amendment.

The lawsuit also alleges that the state and nation have endured many more lethal epidemics and outbreaks in the past and never undertaken such drastic lockdown measures. The lawyers note the yellow fever outbreak from 1793-1802, cholera from 1832-1866, scarlet fever in 1858, typhoid in 1906, Spanish flu in 1918, diphtheria from 1921-1925, polio from 1916-1955, measles from 1981-1991, AIDS/HIV from 1981-2000, SARS from 2002-22004, mumps in 2009, H1N1 in 2009-10 and the flu in 2017-18.

“Never before in the history of the state of New York have such restrictive measures been taken, has the economy itself been forced to shut down; never before has the judgement of the peopel to do what is in their own best interest been taken away from them with government stepping in; never before have the interactions between people and businesses been micromanaged and restricted under penalty of fines, shutdowns and legal process, as they have been since Defendant Cuomo has usurped all legislative and executive authority as alleged herein,” Cohen and Hogan argue. “Defendants’ overreaction has caused plaintiffs’ small establishments to shut down while liquor stores and large grocery and retail establishments are up and running, and quite possibly, flourishing and more profitable than pre-COVID-19.”


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