BUFFALO, N.Y. — The legal pushback against the state's COVID-19 restrictions for businesses may continue with another round. This time against the 10 p.m. curfew for restaurants and bars.
After a state supreme court decision last week for restaurants to resume 50 percent indoor dining and the subsequent state decision to extend it statewide, there were lots of cheers from the owners who would like to say cheers after 10 p.m. as well.
So now the curfew on the menu for legal action with some high powered legal representation.
Attorney Paul Cambria told 2 On Your Side, "I think that was an arbitrarily picked time. It has a huge impact on a big segment of businesses. So we're talking about joining forces and filing an action. We're looking at the moment for possible petitioners - you know businesses that would like to mount this challenge and have us do it. So that's basically the next step."
The successful restaurant lawsuit dealt specifically with Erie County restaurants in an Orange Zone whereas the 10 p.m. curfew is a statewide mandate.
There may be further discussions on the exact strategy, but the basic argument follows this same line — again the state's own admission of a 1.4 percent transmission rate for restaurants which is much lower than the home or so-called living room spread.
Attorney Corey Hogan, who helped spearhead the restaurant lawsuit, says, "There is no evidence anywhere of the viral spread. Not gonna get more intense after 10 p.m. There's just no rational basis for it. And I would think that is maybe the kind of hole that would be argued statewide."
Attorneys also stress that just because they were successful with that restaurant lawsuit, that doesn't mean that a challenge to the statewide 10 p.m. curfew would be a legal slam dunk.
"I think the judge is still going to have to look at this as a fresh request," Hogan said. "The fact that he allowed the restaurants to open against the restrictions might make it even more difficult because the court would feel that the condition was that 10 p.m. was part of what I imposed. And now you're coming back and asking for more."
And what if the Bills appeared in a certain upcoming prime time Sunday super event? 2 On Your Side raised the point that obviously that could run beyond 10 p.m. for a Super Bowl event.
We asked, "Would that kind of give you some impetus?"
Hogan replied, "Whether we can convince a judge that given the impending Super Bowl that those kind of 10 p.m. restrictions make no sense from either a medical perspective like a reality perspective or from kind of a business perspective — why would we want to do something like that — there's just no justification. So hopefully that would be another good example of why it makes no sense."
As for restaurants owners who would again sign on to such a challenge... at least 90 were named plaintiffs or petitioners in the last one, and for this time there is more of a track record of success says Cambria.
"Some have expressed a concern about retaliation — you know intensive inspection — things like that," Cambria said. "But so far as I say we brought four challenges. We were successful on all four and we're looking forward to basically the last one as far as I'm concerned — the curfew."
So far no response from the state on any potential appeals.