STATEN ISLAND, N.Y. — A Staten Island justice on Friday once again denied a bid by a consortium of Staten Island and Brooklyn business owners to strike down the city’s vaccination mandate for restaurants, gyms and indoor entertainment venues.
State Supreme Court Justice Lizette Colon rejected the Independent Restaurant Owners Association Rescue’s (I.R.O.A.R.) request for a permanent injunction to block the order, which will be enforced starting Monday.
The mandate requires patrons 12 years of age and older to show proof of receiving at least one dose of the coronavirus (COVID-19) vaccine to enter indoor bars, restaurants, movie theaters, performance centers, gyms and other indoor entertainment venues.
Employees of those establishments also must be inoculated.
The order does not apply to outdoor activities, including outdoor dining.
Previously, on Sept. 3, the judge had nixed the plaintiffs’ request for an emergency temporary restraining order.
In tossing the motion, the judge raised issues with the merits of some of the plaintiffs’ arguments.
Yet, at the same time, she appeared to question the legality of Mayor Bill de Blasio’s mandate.
“An executive order represents the prerogative of a single individual, and therefore should be limited in scope and duration — even in the context of an emergency,” wrote Colon. “An official record justifying the government’s fiat does not exist. Public testimony from public health-care practitioners supporting these steps does not exist. The people’s representatives are not on record questioning the decisions, conclusions and guidance of health-care scholars and practitioners.”
Colon went on to say de Blasio’s actions during the pandemic “raise many questions.”
“This includes, but in no way is limited to, whether the mayor of a local government may exercise a state’s unacknowledged police power to motivate, compel, coerce or whatever other adjective may exist, a population to receive a vaccination not mandated by its state government,” wrote the judge. “Yet it, like so many other arguments, was not argued here.”
Mark J. Fonte, a lawyer for the plaintiffs, said his clients will press on.
“Although we respect the court’s decision, we certainly disagree with it,” said Fonte, who along with attorney Louis Gelormino, is representing the plaintiffs. “This matter will go forward in federal court. The fight continues.”
Said a city Law Department spokesman: “The city is pleased the case has been dismissed. Vaccination unlocks everything New York City has to offer and will help us recover from this pandemic.”
At a hearing last week, Fonte and Gelormino argued the mandate is capricious, unlawful, arbitrary and unconstitutional.
The order targets only certain businesses, they said. It also discriminates against those individuals who can’t or won’t get the vaccine for medical and personal reasons.
In addition, unlike previous executive orders created during the coronavirus pandemic, there is not an option for people to provide a negative test result or wear a mask in lieu of vaccination.
The mandate, Fonte contended, “creates a sub-class of citizens — one that can enjoy the benefits of all that New York City has to offer and one that is segregated.”
Aimee Lulich, a city attorney, told the court there’s a simple reason for the vaccine mandate: To keep the infection rate in check, particularly in view of the highly virulent Delta variant.
“There is rational basis for this resolution,” said Lulich. “In order to be protected as a community against the virus going to spring 2020 levels, we need to reach population immunity.”
To achieve that protection, health experts believe likely over 90% of the population needs to be vaccinated, she said.
As of last week, the city’s vaccination rate was 64%, said Lulich.
If infection rates soar again, hospitals will be overwhelmed and people will die, she said.
Businesses also will be adversely impacted.
A resurgence would likely set back the restaurant industry three to four years, she said.
“We need to nip this in the bud,” said Lulich, who maintained the vaccination mandate is not onerous.
In her ruling, Colon, the judge, appeared to be vexed by a “leaked” email, which the plaintiffs alleged in court and at a rally outside, demonstrated selective governmental enforcement of the mandate.
A city Health Department spokesman denied the allegation when the Advance/SILive.com inquired about it after last week’s hearing.
Colon said the action “defines grandstanding.”
Yet, the judge also expressed wariness over the imposition of a mandate, unless it is “strictly limited.”
“While the administration of governmental agencies operated by the Executive branch may reach down and directly affect the people on an individual basis, the government, through the Executive, may not usually dictate a course of conduct on the people through fiat — citizens, whether small business owners or residents of the city, are not employees of the executive branch of government,” wrote Colon.
“…When a single individual attempts to impose of vision of morality by obviating the democratic process on a populace a sorry state of affairs exists.”