Why New York State Now Permits 50% Indoor Dining, but Not in New York City

With his hand forced by a New York State Supreme Court ruling, a reluctant Governor Andrew M. Cuomo is permitting indoor dining temporarily in orange zones outside of New York City. The judge's decision, however, is perhaps temporary, with a final verdict expected next week, when the state's legal counsel brings the matter back to court. Cuomo strongly disagrees with the judge's ruling.

The overturn began when approximately 100 restaurant owners in Erie County sued the state over their orange cluster zone designation. The restaurants used the state's own data, which showed that restaurants and bars accounted for 1.4 percent of COVID-19 cases in the state compared to private, household gatherings, which accounted for nearly 74 percent of the cases.

State Supreme Court Justice Henry Nowak heard the case and concluded on January 13 that he could not "find evidence that the state had a rational basis to designate portions of Erie County as an orange zone." The judge said that the state had failed to provide enough rationale for its restrictions, including the indoor dining ban. He ruled in favor of the restaurants and granted a preliminary injunction against the state. He decreed that the restaurants at least temporarily could operate at yellow-zone half capacity.

The ruling applied exclusively to those restaurants that filed suit. In order to maintain consistency and avoid confusing guidelines statewide, however, state regulators on January 14 temporarily moved all restaurants previously within orange zones -- the second-most restricted in the tier of three -- to operate under yellow zone rules, allowing 50 percent indoor dining. This does not apply in New York City and parts of Westchester County; Cuomo banned indoor dining in the entirety of New York City independent of his cluster zone program. New York restaurants are also suing the state for lesser restrictions.

Under Cuomo's cluster zone rules, orange zones ban indoor dining completely and limit al fresco to four people per table. Yellow zones allow dine-in but only with four people maximum per table. Up to four people per table can now dine indoors in upstate counties with some of the state's highest rates of COVID-19 cases or hospitalizations.

State officials previously cited several justifications for keeping indoor dining shut indefinitely in New York City. They have cited the city's population density, advice from the Centers for Disease Control about the potential risk of the virus spreading with indoor dining, and the city's earlier statistics when it was the epicenter of the virus in the U.S.

Does the "density" of New York City put people in restaurants at risk? The data does not corroborate this assumption.

The J.C. Myska Trio jammed with guest musicians at Rue-B on January 8.
As with most music venues, the musicians performed indoors for diners seated outdoors,

Many New York City restaurant owners contrast how indoor dining is pervasive in adjacent Westchester, Long Island, and New Jersey, while the ban remains in place in the city. The NYC Hospitality Alliance, which represents thousands of restaurants in the city, among other businesses, criticized Cuomo on the ongoing indoor dining ban in the city.

"The court's preliminary decision and the governor's action to remove indoor dining restrictions in all 'orange zones' makes the status of the indoor dining ban in New York City all the more outrageous and destructive to thousands of restaurants across the five boroughs, especially when our infection and hospitalization rates are lower than most counties in the state where indoor dining is permitted at 50 percent occupancy," its executive director, Andrew Rigie, and counsel, Robert Bookman, said in joint statement on January 14. "Continuation of the indoor dining ban in New York City is divorced from any of the data and criteria the State has articulated and must be ended now," they said.

Adrien Chevalier (right) performed with friends at the Anyway Café on January 9

In New York City restaurants, which enjoyed a 25% indoor-capacity for most of the fall of 2020, the total ban on indoor dining re-implemented in early December 2020 reduced restaurants to outdoor and take-out service. Many restaurants did not see this option as profitable and closed, eagerly waiting for the state and city to relax restrictions on indoor dining. The government has not yet even hinted as to if or when the indoor-capacity regulations will be loosened for city restaurants. This week's events upstate may not be a barometer.

Bossa Nova NYC performed in a cabana outside Baby Brasa on January 14.

With these stricter restrictions in place in New York City, specialty restaurants known for hosting live music performances withered to a mere handful. The Blue Note, Café Wha?, City Winery, Groove, and the Red Lion were among other popular music restaurants which surrendered and closed their doors in December. Other restaurants, including Caravan of Dreams, the Corner Bistro, and Pinky's Space, constricted their live music schedules to one to three times each week. The Anyway Café, Baby Brasa, Marshall Stack, and Rue-B are among the few downtown Manhattan businesses that maintain a robust music schedule. Music restaurant owners, like owners of other eateries, are struggling to stay open until a relaxation of governmental restrictions in New York City revives the restaurant economy.