Attorneys for local restaurants and the state could not come to an agreement in court Monday, so they will be back at it again on Friday. The two sides are arguing over the latest COVID-19 restrictions mandated by New York.
Most of Erie County is currently in a Orange Zone, which prohibits indoor dining and closes non-essential businesses, like hair salons.
Hogan-Willig founder and partner Corey Hogan is representing restaurants and salons in a fight to reopen the economy. The attorney told WBFO that the state’s own data is the “best evidence” that businesses are not the cause of COVID spread.
“Based on contract tracing conducted throughout the state, the viral spread that could be attributed to resturants and bars was 1.43%, so it's almost nonexistent," Hogan said. "We also represent a bunch of hair salons. In their case it was less than 1%. It was 0.14%. So from what we understand, that was contact tracing that was done in September, October and November, when facilities were up and running.”
Hogan said restaurants would agree to 50% maximum capacity, as was allowed under Yellow Zone restrictions, but the state declined.
Beyond COVID, Hogan said the case represents government's ability to close a business without cause.
"The state may claim issues associated with hospitalizations or positivity rates. That's all fine and dandy, but the fact of the matter is, that may all be going on, but it's not the restaurants' fault," Hogan said. "We're not contributing to that, so why would you close legitimate businesses and put all these businesses out of work?"
Hogan said there are 60,000 restaurant industry employees in Western New York, but only about 15,000 are currently working. He estimated that "we may lose about half of our restaurants" if Orange Zone restrictions continue for several more months.
"If they can close a business without proof that they're doing anything wrong, if the state can come in and close you down, there's nothing they can't do under the Constitution," Hogan said, "and that's what's scary for us as lawyers. That's what we're hoping here, that these kinds of restrictions without a legitmate government basis cannot be imposed on private individuals."
The two sides are scheduled to be back in front of Supreme Court Justice Henry Nowak Friday afternoon. Nowak could decide the case then or reserve decision.
Hogan also said decisions came down Monday afternoon in separate COVID-related cases for Pharoah's Gentlemen's Club in Cheektowaga and Lasertron in Amherst. Each judge ruled in favor of the businesses reopening.
"Lasertron was pleased to receive the ruling from State Supreme Court Justice Emilio Colaiacovo on Monday, January 4, 2021, agreeing with its interpretation of the statewide guidelines for moderate-risk sports and recreation," the company said in a statement. "Lasertron prides itself on the precautionary steps taken to strictly enforce social distancing, sanitization and mask-wearing guidelines to ensure the safety of staff and guests."
Lasertron said it plans to reopen Thursday at 50% in its arena. The arcade and food and beverage service will remain closed.
WBFO's Nick Lippa contributed to this story.