CLARENCE, N.Y. (WKBW) — Greg Duell, the owner of Duff's in the Eastern Hills Mall, said he's done everything he can to abide by New York State's outdoor dining guidance, but he's continuously cited by the Erie County Health Department. Most recently, he was issued a citation Saturday for not having two fully open sides on his patio.
"I absolutely say that I have two fully open sides in addition to a large opening on the third side," Duell said.
The patio is built off of the side of his restaurant, overlooking the Eastern Hills Mall's parking lot. One side is a 40 foot long wall with openings where it meets the awning. The entrance to the patio is open, and the opposite side is open as well, with a wind screen several feet from the patio structure. Duell has even installed streamers to demonstrate air flow to customers.
A representative for the Erie County Health Department told 7 Eyewitness News, "Public health sanitarians conducted an inspection at that Duffs location on Transit Road as part of our department’s work this weekend. Sanitarians observed outdoor dining in structures that did not conform to NYS guidance for outdoor dining, and issued violations."
The representative also cited guidance that was put in place in June.
Duell said he was at his restaurant the entire day, but did not see a health inspector at all. He received the violation through email.
"They did threaten significant fines, suspension of my license, or permanent revocation of my permit to operate, which is incredibly scary for me because if I lose my license, even though I haven't seen an inspector, that's it. I'm done," Duell said.
Duff's is one of about 90 restaurants suing the state to reopen in the Orange Zone. HoganWillig Attorneys at Law are representing the group. Attorney Corey Hogan said the case rests on the fact that not one of the restaurants has had a COVID case traced back to them. Hogan said about 1.4% of COVID cases can be traced back to restaurants, while 73.84% come from household or social gatherings.
Hogan also pointed out the Capital Region has no COVID zone restrictions, despite having higher positive rates and less hospital/ICU beds available than Erie County.
December 28th, New York State Supreme Court Judge Nowak said the state and restaurants must compromise on COVID-19 restrictions by January 4th. January 4th, the state and restaurants did not meet a compromise, therefore will make a decision on whether or not restaurants can reopen Wednesday.
Hogan said he believes the fact that several of the restaurants he's representing have been recently cited is not a coincidence.
"They're going after the Western New York restaurants because they chose to go to court to try to reopen," Hogan said.
Duell went back to the restaurant guidance sent out by Erie County when Orange Zone was declared. It says open-air spaces can have a temporary cover "so long as such cover has at least two open sides for airflow."
"The key word was two sides open for airflow. So when you look at the word open, everybody's interpretation is different," Duell said.
Duell has an engineering degree from the University at Buffalo, so he purchased an anemometer and calculated his restaurant's air flow himself.
"My analysis found that I have 22.3 air changes per hour. That is significantly safer than a hospital for airborne contaminant removal," Duell said.
He presented that information to the Health Department.
"They said that they don't understand it. It has to go to the Empire State Development Corporation," Hogan said.
In fact, Duell tested the airflow, or air changes per hour, inside his restaurant. He said he found the air changes per hour inside the restaurant were significantly higher than the average amount of air changes per hour inside a home.
"The signs are pointing towards the fact that these restaurants have significant air flow in them... I think there needs to be more attention paid that we are not part of the problem. In fact, we may be a part of the solution," Duell said.