Pandemic-related Emergency Executive Orders by the Governor of New York and the Mayor of New York City have had a severe and differential impact on the operation of fitness, yoga, pilates, and other group activity studios. Indoor classes in studios in the NYC metropolitan area were banned—while similar activities were permitted upstate. A recent case addressed the question: did the geographic divide raise constitutional issues?
Fit, Inc. sought a preliminary injunction stopping New York City from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the continued New York City lockdowns and New York City shutdown of fitness, yoga, pilates, and other boutique studios.
Grasmere asserted constitutional violations by the State, under color of law, of rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and the New York Constitution Article 1, § 7, and Article 1, § 11. The controversy arose out of the COVID-19 pandemic and the ensuing “shut down” of the State of New York when Governor Andrew Cuomo issued a series of Executive Orders in March 2020.
On March 7, 2020, the Governor signed Executive Order 202 declaring a state of disaster emergency in the State of New York and, subsequently, signed Executive Order 202.3 on March 16, 2020. The latter stated that “[n]o local government or political subdivision shall issue any local emergency order or declaration of emergency or disaster inconsistent with, conflicting with or superseding the foregoing directives, or any other executive order issued under Section 24 of the Executive Law”. Additionally, Executive Order 202.3 also stated that “[a]ny gym, fitness centers or classes, and movie theaters shall also cease operation effective at 8 pm on March 16, 2020, until further notice”.
Then, on March 18, 2020, the Governor signed Executive Order 202.5, which stated that “no locality or political subdivision shall issue any local emergency order or executive order with respect to the response of COVID-19 without the approval of the State Department of Health.” Also, on March 18, 2020, the Governor signed Executive Order 202.6 , which read as follows:
Effective on March 20 at 8 pm: All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize … Any essential business or entity providing essential services or functions shall not be subject to the in-person restrictions. This includes essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports, and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public…
The foregoing Executive Orders were still in effect on August 17, 2020, when the Governor announced that gyms and fitness centers were permitted to reopen starting on August 24, 2020. However, the reopening was subject to inspection by local health departments, and that any locality could delay reopening until on or after September 2, 2020. This announcement stated that:
Local elected officials may choose to delay the reopening of gyms and fitness centers until September 2 to, in part, provide time for required local health department inspections, and may also choose to delay the reopening of indoor fitness classes until a date beyond September 2. In New York City, the Mayor will determine whether gyms and fitness centers should postpone reopening. Outside of New York City, the county's chief executive — county executive, administrator, manager, or chair of the local elected legislative body — will determine whether gym reopening needs to be postponed. Localities can also determine whether gyms postpone the resumption of indoor classes. In New York City, the Mayor and the county's chief executive may decide to opt-out of indoor group fitness and aquatic classes within their jurisdiction throughout the rest of the state, postponing their resumption until a later date.
Three days later, on August 20, 2020, the Governor issued Executive Order 202.57 in accordance with the August 17, 2020 announcement, which stated that, “[t]he directive contained in Executive Order 202.3, as extended, which require any gym, fitness center or classes, to cease operation, is hereby modified only insofar as to allow a gym, fitness center, or class to operate subject to adherence to Department of Health issued guidance; and as provided further, that such operations may begin no earlier than August 24, 2020, or maybe postponed by the local chief executive only consistent with Department of Health issued guidance.”
Mayor Bill de Blasio issued New York City Emergency Executive Order 144 on August 31, 2020. That order, consistent with the governor's foregoing Executive Orders, permitted gyms and fitness centers that met the criteria set forth by the Governor to open on September 2, 2020. Executive Order 144 further stated that “Indoor group fitness classes, as defined by DOHMH at nyc.gov/health/restart are prohibited. An indoor group fitness class is defined as, “an activity with two or more participants led by either an in-person instructor or a remote or pre-recorded instructor.”1 Such indoor group fitness classes remained closed at the New York City Department of Health's recommendation on September 10, 2020.
Grasmere alleged that boutique fitness studios — yoga, pilates, barre, cross fit, spin, and rowing — are open throughout the State of New York, except within the City of New York. It was further alleged that this shut down was and continued to be “random and arbitrary." As a result, Grasmere and other boutique fitness studios similarly situated have been forced under threat of criminal penalties to close their businesses, thereby depriving them of their liberty and property interests in violation of the Due Process Clause and Equal Protection Clauses of the United States Constitution and State Law.
Grasmere also sought a designation of the action as a class action; designation of Grasmere and others as representative plaintiffs of all boutique fitness studios; a declaratory judgment that their constitutional rights and members of the putative class have been violated; enjoining the City from enforcing the shutdowns and issuing any future orders or rules; granting a preliminary injunction enjoining any further enforcement of the shutdowns. And compensation for $250,000,000.00. The City cross-moved to dismiss the complaint.
The City argued that the studios failed to state a cause of action for damages from March 16, 2020, through August 24, 2020, as the shutdown of their businesses were at the direction of the Governor [a non-party], not the City. Additionally, the classification as non-essential businesses was and continued to be the edict of the Governor. The City was not free to disregard Executive Order 202.3, and the Governor was not a party to this action. Therefore, assuming the alleged financial harm from March 16, 2020, through August 24, 2020, the complaint failed to state a cause of action to damage the City.
The City further argued that, with respect to the continuing enforcement of Emergency Executive Order 144 on and after August 24, 2020, Grasmere also failed to establish a cause of action for damages. Grasmere asserted without support that there was no science to prove that operating a boutique fitness studio on Staten Island was unsafe as opposed to the remainder of the State. Assuming the lack of science to be true, Grasmere did not articulate facts to support the contention that the basis for Emergency Executive Order 144 was without a reasonable and substantial basis.
The City submitted the affirmation of Dr. Jay Varma, the Mayor's Senior Advisor for Public Health. Dr. Varma affirmed that the City's reopening was more “gradual and fine-tuned” due to the different risk factors the City faces compared to the remainder of the State of New York. He affirmed that NYC contended with the highest ongoing risk of importing' cases because it was a center for domestic and international travel and welcomed tens of thousands of students arriving each fall for higher education studies in the numerous universities and higher learning institutions located within the five boroughs. And the inherent risk associated with a large population living in a dense environment, including in high-risk residential congregate facilities and multi-generational housing, made distancing difficult and increased the likelihood that an increase in transmission could quickly lead to a resurgence.
Dr. Varma attributed the higher risk of transmission during indoor group fitness classes because participants were not tied to equipment in a fixed location to ensure social distancing. This increased the risk that the participants would contact other participants for extended periods of time while exercising vigorously. The contact would be for a prolonged period of time as opposed to individuals on equipment. This prolonged contact, coupled with the increased respiratory droplet production, broader dispersion during exercise, and greater volume of inhalation/exhalation, rendered indoor group fitness classes a high-risk activity for the transmission of COVID-19.
With respect to Grasmere's substantive and procedural due process claims, the City argued that the studios could not establish the deprivation of a protected liberty or property interest. The complaint made unsupported allegations that Grasmere was deprived of a right to intrastate travel, a right to engage in commerce, a right to work, a right to contract, and significant revenue through their businesses' operation. In this regard, the City argued that the studios had not been restricted from opening their boutique fitness centers or gyms, but rather, had been restricted in the manner in which they might operate. Grasmere could conduct outdoor and online fitness classes. Although the studios claimed they had been deprived of lost revenue/profit or the right to operate their business, neither was protected under the Fourteenth Amendment. And Grasmere was not entitled to procedural due process in the form of a hearing because summary administrative actions were justified to protect the public's health and safety.
And Grasmere's equal protection claims failed because the studios did not establish that the City undertook a governmental action that distinguished similarly situated individuals. Here, all gyms within the City of New York, large or small, were prohibited from conducting indoor fitness classes at the mayor's direction.
The physical taking claims failed to state a cause of action since Grasmere had not had private property appropriated or invaded without compensation. The City only regulated the property's use without reducing the studios' economic value to zero. Grasmere was free to operate its business online or outdoors or sell the property if it so chooses. Therefore, the City argued that Grasmere did not prove that it would never realize a financial return.
Here, Grasmere failed to state a cause of action for damages from the City with respect to Executive Orders 202, 202.3, 202.5, and 202.6 as the shutdown of their businesses was at the direction of the Governor [a non-party]. As pled in the complaint, those facts were not in dispute and did not constitute a cause of action against the City. Additionally, the studio also failed to state a cause of action for any loss of revenue or business by reason of the classification as nonessential businesses which, was and continued to be, an edict by the Governor and thus non-compensable by the City—which was not free to disregard the Executive Orders.
The state's authority to enact quarantine laws and public health laws was derived from its police power, a power specifically retained under the Constitution of the United States.
To implement the police power, the state may invest local bodies called into existence for local administration purposes with authority in some appropriate way to safeguard public health and public safety. The mode or manner in which those results are to be accomplished is within the state's discretion. However, any such law or local rule enacted may neither contravene nor infringe any right granted or secured by the Constitution. The liberties and rights secured by the Constitution do not bestow an absolute right to each person to be wholly free from restraint to act according to one's own will to the detriment of the common good. One such liberty secured by the 14th Amendment, in part, is the right of a person to live and work where he will; and yet compliance may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests.
Grasmere failed to state a cause of action and, therefore, could not demonstrate a likelihood of success on the merits since the City had a real and substantial basis for restricting indoor fitness classes, which did not constitute a plain and palpable invasion of rights. Assuming the allegations of the complaint to be true, the studios did not state a constitutionally recognized general right to do business without conditions, nor the right to procedural due process with respect to the City's decision making authority. The studios did not demonstrate that they were deprived of substantive due process with respect to a fundamental constitutional right implicit in the concept of liberty by government action that is arbitrary or conscience-shocking. The alleged loss of revenue or business was not a direct government appropriation or physical invasion of Grasmere's private property or regulatory taking.
The studios' Equal Protection argument also failed to state a cause of action in that boutique fitness studios were not within a constitutionally protected class or subjected to selective enforcement since all gyms, regardless of size, including boutique fitness studios, were prohibited from conducting indoor fitness classes due to the unique nature of such activity, i.e., the increased respiration and prolonged period of close contact. Therefore, the studios were not treated differently from other gyms similarly situated within the City of New York and were not subject to selective enforcement. Moreover, the State's remaining counties were outside the Mayor's jurisdiction and not subject to Emergency Executive Order 144.
Grasmere failed to submit admissible evidence to rebut Dr. Varma's sworn affidavit detailing the City's reasonable and substantial rationale for restricting indoor fitness classes within the densely populated City of New York. And did not address Dr. Varma's explanation that the dense population, coupled with the fact that the City is the center for domestic and international travel for visitors and temporary residents, sets it apart from the State's remainder with respect to the risk of infection. The allegation that “there is no science” regarding a boutique fitness studio's operation was without evidentiary foundation. The complaint did not contain factual allegations that established an arbitrary or capricious basis for Emergency Executive Order 144.
Grasmere failed to state a cause of action and could not demonstrate a likelihood of success on the merits for a preliminary injunction. The balance of harms weighed against the studios in light of the alleged irreparable harm incurred by the studios against the potentially irreparable harm to the general public in connection with the Emergency Executive Orders affecting public safety.
Originally Published by Smith Gambrell, January 2021
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