Judge dismisses restaurant owners’ petition for temporary injunction blocking vaccine mandate in New York

STATEN ISLAND, NY – A Staten Island judge on Friday rejected an offer by a consortium of Staten Island and Brooklyn business owners to quash the city’s vaccination mandate for restaurants, gyms, movie theaters and other indoor entertainment venues.

State Supreme Court Judge Lizette Colon has denied the Independent Restaurant Owners Association Rescue’s (IROAR) request for a temporary injunction to block the order, which will be enforced from September 13.

Mayor Bill de Blasio’s decree came into effect on August 16.

Customers 12 and older must prove that they have received at least one dose of the coronavirus (COVID-19) vaccine to enter bars, restaurants, cinemas, performance venues, gyms and other indoor entertainment venues.

Employees of these establishments must also be vaccinated.

Colon has not explained the reasons for his decision and is not obligated to do so.

In the meantime, it reserved its decision on the IROAR’s request for a permanent injunction. No date has been set for a new hearing.

“We are disappointed with today’s decision but will continue our efforts to obtain a permanent injunction,” said Mark J. Fonte and Louis Gelormino, lawyers for IROAR. “The court had the opportunity today to put an end to these illegal warrants. We hope that after an evidentiary hearing we will prevail and bring some semblance of common sense back to our city. “

The 45-minute hearing took place in a courtroom on the fourth floor of the Supreme Court of the State of St. George.

Outside the courthouse, dozens of people attended a loud rally to protest the warrant.

Residents participate in a rally outside the Staten Island courthouse against New York City’s vaccination warrants. (Staten Island Advance / Jan Somma-Hammel)

UNCONSTITUTIONAL?

Fonte and Gelormino argued that the order is capricious, illegal, arbitrary and unconstitutional.

The order only targets certain companies, they said. It also discriminates against people who cannot or do not want to be vaccinated for medical and personal reasons.

In addition, unlike previous decrees created during the pandemic, people do not have the option of providing a negative test result or wearing a mask instead of vaccination.

“The American people are obligated to show their health information before eating a cheeseburger,” Gelormino said. “It’s scary and frightening. Having to check papers is a slippery slope.

Gelormino likened the mandate to a “carrot and stick approach” to getting people vaccinated and said it was doomed to fail.

In the meantime, restaurants will lose customers and their employees will suffer, while countless others will be forced to give up the things they love, he said.

“It means that there is no fun for you allowed in New York City unless you are vaccinated,” Gelormino said. “It’s also more like the movie ‘Footloose.’ You can’t dance unless you’re vaccinated. … I’d love to see them put that on Walmart, Target, or the liquor stores. You’d have a whole room full. lawyers here.

Fonte said the mandate, in his opinion, is “clearly unconstitutional”.

“What this tenure does is it creates an underclass of citizens – one who can take advantage of all that New York City has to offer and one who is separate,” Fonte said. “Segregation has no place in the United States of America. … Where does it stop? Will there be separate bathrooms? “

The prescription is particularly unfair to those who cannot get the vaccine due to a health problem, he said.

“With this mandate, it’s your body, it’s de Blasio’s choice,” Fonte said.

NYC Vaccine Rally

A rally was held outside the Staten Island courthouse on Friday, September 3, 2021, against New York’s vaccination warrants. (Staten Island Advance / Jan Somma-Hammel)

LAWYER QUESTIONS EMAIL

The lawyer referred to an internal email from the city’s health department he received from a suspected whistleblower.

Dated August 18, the email was addressed to members of the agency’s community outreach team, which is raising awareness among businesses about the vaccination mandate.

He asks members working in Brooklyn to “please avoid the Park Slope areas.”

Fonte suggested that businesses in this section could get a free pass because the mayor resides there, eats, and goes to a gym in Park Slope.

“We ask our elected officials to open an investigation into the whistleblower’s complaint disclosed during the proceedings,” Fonte said outside the court. “The mayor’s office was caught red-handed in preference to restaurants in its region. Democratic rules for you but not for me continue across the country. “

A spokesperson for the city’s health department denied the charges.

“These claims are by no means based on fact,” the spokesperson said in an email. “Department of Health Community Outreach Teams (COTs) were advised to avoid canvassing efforts in the Park Slope neighborhood as Test & Trace (T2) canvassers were already covering Park Slope. Yesterday, T2 canvassers visited 150 businesses under zip code 11215 and 181 other businesses under zip code 11217. ”

The spokesperson said COT teams are only involved in education, not enforcement. They visit neighborhoods to distribute educational materials and answer questions from residents and business owners, he said.

Aimee Lulich, an attorney for the city, said the reason for the vaccine’s mandate is simple: to keep the infection rate under control, especially given the highly virulent delta variant.

“There is a rational basis for this resolution,” Lulich said. “In order to be protected as a community against the virus reaching the spring 2020 levels, we must achieve popular immunity.”

To get this protection, health experts believe more than 90% of the population needs to be vaccinated, she said.

Right now, the city’s vaccination rate is 64%, Lulich said.

If infection rates rise again, hospitals will be overwhelmed and people will die, she said.

Businesses will also be impacted.

“If there is a resurgence, it will probably take three to four years for the restaurant industry to get back on its feet,” Lulich said. “We have to nip this in the bud.”

NYC Vaccine Rally

A man says he lost his job because he didn’t get the shot at a rally outside the Staten Island courthouse in St. George. (Staten Island Advance / Jan Somma-Hammel)

NOT SOLID, SAYS THE CITY

Lulich maintained that the vaccination mandate is not onerous.

The “majority of people” who frequent restaurants and gyms say they would get vaccinated if needed, she said.

Further, the assertion by IROAR lawyers that restaurants and entertainment businesses will suffer and that employees will be laid off as a result of the mandate is “highly speculative” and in the absence of supporting data, a she declared.

The mandate does not apply to outdoor activities.

Lulich said it’s very possible that restaurants will find they have enough outside customers and enough inside vaccinated customers to do well.

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