New York City Restaurateurs Can No Longer Swallow Subjective, Unscientific COVID Restrictions

Restaurants, delis, and pubs are the lifeblood of our neighborhoods. They’re places we go to congregate with colleagues, celebrate with family, and catch up on “hyperlocal” news and gossip with neighbors. Much of the character and vibrancy of a neighborhood is found in its eateries.

On April 13, New York Governor Andrew Cuomo announced a Northeast regional plan to reopen the state’s economy in coordination with New Jersey, Connecticut, Pennsylvania, Rhode Island, and Delaware: “We have reached a plateau in the number of cases and . . . should start looking forward to reopening but with a plan. The art form will be doing it smartly, in a coordinated way, cooperatively and share intelligence.”

Unfortunately, Cuomo long ago ditched the idea of coordinating the full reopening of New York City with nearby states, and the Big Apple lagged months behind other regions in the state—and in the entire Northeast—to allow indoor dining and drinking.

Coincidentally or not, days after a planned class-action suit by more than 450 restaurants in New York City got local media coverage in early September, Cuomo relented—exactly one iota—and announced restaurants in the five boroughs could offer limited indoor seating starting September 30.

Restaurants in Nassau, Suffolk, Westchester and other suburban counties have been allowed to offer indoor seating at half of maximum occupancy since the middle of June, and are subject to significantly laxer mandatory practices.

Il Bacco Ristorante, the lead plaintiff in the class-action suit is located in Little Neck, Queens. Compare the COVID-19 protocols imposed on Il Bacco and Peter Luger Steak House, which is within walking distance in Great Neck, Long Island:

Unlike Peter Luger, Il Bacco must publicly post its indoor dining capacity and the phone numbers patrons can use to rat them out by calling or texting if they observe any violations of COVID edicts.

Peter Luger can offer bar seating—as long as parties are six feet apart—but bar service is not allowed at Il Bacco.

Indoor tables must be six feet apart at Il Bacco, but they can be closer together at Peter Luger if there are plexiglass or other barriers at least five feet high separating them.

Il Bacco must meet as yet unspecified “air filtration, ventilation and purification standards,” as well as “allow for outside air ventilation”; there are no such requirements for Peter Luger.

Operating at only a quarter capacity, Il Bacco will have to turn tables over at a much brisker pace, and the restaurant is required to kick customers out at midnight to “discourage loitering.” Allowed to fill half its tables, last seating at Peter Luger is 8:45 pm, and patrons can linger over their Apple Strudel without worrying about turning into pumpkins at the stroke of midnight.

An additional, potentially off-putting edict: Along with a temperature check at the door, Il Bacco’s customers must provide contact tracing information for one person in their party—and are required to self-quarantine for two weeks, should any staff or customers in the restaurant that night test positive for COVID. Giving patrons the option to provide contact tracing information is a “recommended best practice” for Peter Luger, and nobody’s temperature is taken upon entry.

The Permanent Pause

As of Labor Day, the COVID infection rate throughout the state of New York had been below one percent for 31 days in a row, and new infections among New York City residents dropped to just 0.8 percent. And yet, phase four in New York City looked remarkably like phase two in the rest of the state.

After announcing that New York City restaurants could start serving patrons indoors beginning July 6, Cuomo unexpectedly postponed indoor dining and drinking indefinitely, with Mayor Bill de Blasio’s support. Both cited COVID outbreaks occurring in other cities and states that are not under their jurisdiction, and that could have been caused, at least in part, by large-scale street demonstrations.

As infections in this summer’s COVID hot spots in Arizona, California, Florida, and Texas waned, the governor and mayor next pointed to New York City’s population density as the justification to continue the ban—and then to inflict more onerous conditions on indoor dining than were prevalent in other regions. 

There is very little difference in population density between Little Neck and Great Neck. Moreover, with the infection rate uniformly hovering between 1 percent and 1.5 percent statewide, a diner living on one side of the county line is no more or less likely to contract or transmit COVID than a diner living on the other side. There is no science suggesting otherwise.

Likewise, there is no science establishing whether restaurants should lower capacity, and by how much. Similarly, there is no science to determine whether infection-control measures, such as installing plexiglass shields between booths and tables and using ultraviolet light to sanitize indoor air and surfaces are sufficient—or even necessary—to prevent COVID spread.

Simply put: The Centers for Disease Control and Prevention (CDC) guidelines notwithstanding, neither the federal government nor any state has studied the optimal scenario under which restaurants and other indoor venues can remain financially viable while also keeping patrons and the surrounding community safe.

The little research that has been conducted about restaurant dining is inconclusive. In a recent CDC survey of 154 cases who were confirmed COVID positive after diagnostic testing, the COVID positive group were roughly twice as likely to have recalled dining at a restaurant within two weeks of the onset of symptoms as a group of 160 controls who tested negative.

While this case-control study suggests a correlation between dining in a restaurant and contracting COVID, it falls short of establishing causation. Nearly all (97.7 percent) the participants who tested negative for COVID and 81 percent of those testing positive reported “most” or “almost all” other diners at the restaurants they had patronized wore masks and/or social distanced—in other words, both groups had eaten at restaurants where infection control compliance was high or nearly universal

(By the way, the research is inconclusive on whether and how much protection from COVID a mask provides, so this CDC finding is hardly an outlier.)

And here’s the kicker: Those who tested positive for COVID in the CDC study were more than twice as likely to report close contact with a family member with COVID than those who tested negative (50.8 percent versus 21.7 percent).

Seat-of-the-Pants Pronouncements

In addition to having no scientific underpinnings, Cuomo’s and de Blasio’s COVID restrictions have been both capricious and contradictory.

What Cuomo giveth—indoor dining capacity at 50 percent by November 1, if the infection rate in New York City holds steady—De Blasio could taketh away. Though he appears to have backed off his position on not resuming indoor dining until a COVID vaccine is widely available—which, again, there is no science to support—de Blasio made noises about stopping indoor dining if the city’s positive test rate rose to two percent on a seven-day rolling average. So having invested money in an air filtration system to satisfy Cuomo’s diktat, New York City restaurants could be forced to resume take-out only service on de Blasio’s whim.

At the end of September, clusters of new COVID cases occurred in 14 ZIP codes throughout New York City—none of them traced to restaurants. The infection rate ranged from 8 percent in Bensonhurst, Brooklyn, to 3 percent in the East Bronx. As of yet, de Blasio and Cuomo have not made good on threats to force diners back outdoors, except in these hot spots.

But as has been the case from the beginning, de Blasio’s and Cuomo’s dueling edicts created confusion and inequities for restaurant owners. Marco del Peschio, an owner of Queens restaurant Tuscan Hills, told NBC News:

I’m on Queens Boulevard, which is the cutoff between orange and red zones. So, I’m actually in the orange zone, but across the street from me is red. It’s very confusing. I’m afraid because it looks like a political battle between de Blasio and Cuomo. One guy says one thing, and I get prepared for the business. And then the next day, Cuomo announced, “no, we can’t do this.” It’s confusing.

Throughout the course of the pandemic, each issued edicts that were at odds with what the other was recommending or requiring regarding sheltering-in-place, requiring people to wear masks in public, and closing schools and playgrounds—and they bickered about their differences in public. They continue to clash over when and how to reopen public schools. Had their decisions actually been guided by science, they wouldn’t repeatedly have been at odds with each other.

For his part, Cuomo arbitrarily follows guidelines and data only when it suits him. He continues to require a mandatory two-week self-quarantine for travelers—even though the CDC no longer recommends it. Previously, Cuomo claimed he was following CDC guidelines when he put COVID-positive patients into nursing homes, a decision that may be responsible for up nearly one in five of the 32,600 COVID deaths in the state, though this may be an undercount because the governor has been less than forthcoming with the relevant data.

New York City Crisis

Cuomo took time from his busy schedule as one of the most eligible bachelors in the nation to write a book about how he saved his state from COVID, American Crisis: Leadership Lessons from the COVID-19 Pandemic. Cuomo’s publisher, Crown, describes the book as “a remarkable portrait of selfless leadership and a gritty story of difficult choices that points the way to a safer future for all of us.” Crown promises Cuomo will be “sharing the decision-making that shaped his policy”—which, presumably, means he will finally divulge the science he claims underlie his COVID restrictions and edicts.

Frankly, the governor’s leadership style during the pandemic has been weighted more toward autocracy than transparency. The class-action suit may force Cuomo and de Blasio to show New York City bar and restaurant owners the science, or to lift COVID restrictions that have put more than 150,000 New York City restaurant industry workers out of work, and are financially ruinous to restaurants—and to the ecosystem of farmers, food distributors, linen launderers, and restaurant supply companies, among others, that service them.

The Bronx, in particular, has been hit harder by the COVID lockdown than the rest of the city—a sizable percentage of the workforce works in the hospitality industry, or in related businesses like foodservice distributors. The official unemployment rate is 21 percent—roughly the same level as during the Great Depression of the 1930s. But economist James Parrott thinks the real unemployment rate is 41 percent, which he arrives at by dividing the number of people receiving unemployment insurance by the number who were in the workforce in February, before the statewide lockdown began on March 22.

A 41 percent COVID infection rate in the Bronx would be an emergency. A 41 percent unemployment rate should be an emergency.

Il Bacco and the other plaintiffs have filed for a preliminary injunction with the Supreme Court of the State of New York enjoining the enforcement of Cuomo’s and de Blasio’s COVID restrictions. The hearing is scheduled for November 9. The plaintiffs plan to follow up with a suit asking for $2 billion in damages, as well as for attorneys’ fees, costs, and expenses under applicable state law.

Winter is coming. And despite the New York City Council throwing restaurant owners another bone by easing regulatory restrictions on propane torches to heat outdoor seating spaces, winters here are inhospitable to al fresco dining. It’s hard to imagine being able to eat dinner without gloves and a coat by the time the judge rules on the preliminary injunction.

It is an act of courage for restaurateurs to sue Cuomo and de Blasio over their unscientific COVID edicts. They face retaliation, such as having their liquor licenses revoked. They are not just fighting for their own survival, but also for our freedom!

New York City residents who want to help keep their favorite restaurants stay in business can make their voices heard by signing this Change.org petition, and by driving business to restaurants in their neighborhoods by nominating them for inclusion in the HONoR Roll program. 

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About Ruth Papazian

Ruth Papazian is a Bronx-based health and medical writer, and a political junkie.

Photo: Angela Weiss/AFP via Getty Images