Local businesses planning to sue Erie County over mask mandate

Conditions that qualify as mask exemptions have smaller scope than many realize
Posted at 11:51 AM, Nov 24, 2021

BUFFALO, N.Y. (WKBW) — Local businesses plan to sue Erie County over the county's mask mandate that was implemented Tuesday.

On Monday Erie County Executive Mark Poloncarz announced a mask mandate to take effect for all public indoor settings beginning at 6 a.m. on Tuesday in response to rising COVID-19 cases and hospitalizations.

The mask requirement applies to all public indoor settings with one exception. According to the county, " venues that have strict vaccine requirements for entrance, such as Highmark Stadium and KeyBank Center, would not have to require masks for vaccinated individuals under these orders."

According to HoganWillig Attorneys at Law:

"Our office has already been contacted by hundreds of local businesses, including restaurants, gyms, hair salons, barbershops, and the like, all in an effort to determine what, exactly, their rights may be with respect to potentially challenging the Emergency Orders. As a result, our clients are left with no choice but to prepare a lawsuit to challenge the issuance of Emergency Orders on multiple legal grounds."

HoganWillig continued on to provide the following information:

First and foremost, there is simply no evidence that COVID-19 is being transmitted in any of the facilities subject to the Emergency Orders; to wit, the only publicly available information demonstrates that 1.43% of transmission takes place in restaurants, 0.06% of transmission takes place in gyms, and 0.14% of transmission takes place in hair salons and other personal care service businesses. This is the State of New York’s own data – this was released on December 11, 2020, and despite our office’s efforts through a variety of legal avenues under FOIL to obtain more up-to-date information over the course of the last year, the State of New York has refused to provide it.

We call on Erie County to publicly release that information so that our clients can be made aware of how, if at all, the operation of their respective businesses allegedly contributes to the spread of COVID-19. We have the benefit of a track record on our side. At this point last year in November 2020, many facilities subject to these new Emergency Orders were forced to close by NYS. It is documented that COVID-19 case rates spiked to new highs with many of these businesses closed or restricted. Subsequently, our client group was able to win a preliminary injunction against their closures, citing Article 78 of the CPLR, and the state was not able to provide reasonable data that showed these closures were necessary, and in fact, potentially made it worse.

It is egregious that the Emergency Orders promote a condition to exist with businesses in neighboring counties not subject to mandates. This sends commerce outside of Erie County which seems to be in no one’s best interest.

It is equally as egregious that the Erie County Emergency Orders were enacted the very morning they were intended to take effect, on November 23, 2021. Indeed, Erie County announced the Emergency Orders less than 16 hours before they were to take effect, at a press conference on November 22, 2021. In other words, Erie County provided virtually no notice to our clients that they were going to immediately have to begin to comply with the Emergency Orders, or risk suffering financial penalties (and perhaps penalties even more severe) for their failure to comply.

Finally, the Emergency Orders themselves are vague and contradictory; for example, Erie County has asserted that: “WHEREAS, the [CDC] currently recommends wearing masks [] based upon evidence indicating that fully vaccinated individuals, infected with the Delta Variant of COVID-19 after vaccination, are contagious and able to spread the virus to others.” However, Erie County later provides that: “Any business [] who voluntarily implements a 100% COVID-19 vaccination requirement for entry into their facility [] shall be exempt from the masking requirements herein.” This begs the question: if it is true that fully vaccinated individuals can still be contagious and spread the virus to others, why is there an exemption for businesses that impose a vaccination requirement? Furthermore, why is there not a similar exemption for businesses whose patrons can prove that they have natural immunity to and from COVID-19?

Neither Public Health Law § 308, nor Executive Law § 24(1), have ever been used in such a way as to impose these types of mandates upon such a broad swath of citizens, particularly when there is no longer any legitimate threat to the public health based upon the continued falling death rates throughout New York State, which as always, are concentrated in individuals over the age of 60 (i.e., approximately 80%) that have an average of at least 3 other negative health conditions.

Tuesday, the Erie County Legislature Minority Caucus introduced a resolution that, if passed, would call on the New York State Senate and Assembly to revoke Erie County Executive Mark Poloncarz's emergency powers.

New York State Senator Patrick Gallivan (R - 59th District) is holding a press conference Wednesday at 2 p.m. to introduce legislation that, if passed, would "amend the state's executive law and public health law in relation to the length of time local governments can impose an emergency declaration and emergency orders. The bill would ensure checks and balances in local government."

HoganWillig has represented clients in the past in lawsuits challenging mask mandates in schools, challenging restrictions associated with "high-risk sports" in schools, to fully reopen schools and to allow restaurants and bars to remain open past a curfew.