When you do something for long enough, it’s hard to remember life before you did that thing.
Now 10 years after young me — with no legal education — brought the first complaint against TSA body scanners, it’s hard to imagine a time when going into an airport was a comfortable experience before which you didn’t ponder what variety of molestation or harassment you’d encounter. Or a time when the sounds of metal detectors didn’t generate the same emotional response for me as nails on a chalkboard. But it’s also hard to imagine a time when I didn’t serve the public as an advocate for the privacy of humans as they move from one place to another.
I’ve learned that it matters not whether an “R” or a “D” appointed the administrator of the TSA: both sides are quite capable of authoritarian policy. While I’ve not been shy about being pleased to see Trump go, I promise to keep Biden’s appointee in check just as I did Trump’s, and just as I did Obama’s. Our system of government, and especially our system of justice, requires representation of both sides of any issue. Now with proper legal education and a decade of learning how to hold the government responsible, I look forward to continuing to represent those who have been wronged by poorly planned or executed government policy (or as I’ve bluntly referred to it in the past, government assholery), as well as continuing to pressure the government to create and implement prudent policy to avoid those injuries in the first place.
To those who have been here with me since 2010, thank you, so much, for your continued support. To those who have just had their first negative encounter with the government, I am sorry, and welcome aboard.
One by one, New York Governor Cuomo’s arbitrary, irrational rules are coming down. Last week, I wrote that challenges to a ban on advertising or ticketing music at restaurants was destroyed as a result of a pair of court challenges (one of which I argued). This week, a federal court in Brooklyn will hear arguments on another challenge I’m working on: the midnight food curfew.
What’s that? New York City finally just got the blessing of the Governor to resume indoor dining last week — well over 6 months after closing mid-March and likely last in the nation — with massive restrictions: 25% max capacity, air filtration upgrades, and a midnight closing time. Yes, for some reason, the Governor decided that it is only safe to be in a restaurant until the clock strikes 12, after which your risk of corona becomes excessively high. To clarify, this rule applies to restaurants — even those serving no alcohol — and applies even though only seated dining is allowed with full social distancing (no mingling, no dancing, no fun).
I filed suit on behalf of a Brooklyn restaurant to challenge this rule (which receivedsomemediaattention, and a hearing on our motion for a preliminary injunction is tomorrow at 12:30 PM, public audio: (571) 353-2300, access code 188465608#. The written briefing on the motion went pretty normally… tl;dr: I argued that there’s no reason to subject NYC to restrictions that aren’t used elsewhere in the state or country, they argued that NYC is special because of it’s population, I replied that they failed to demonstrate why higher population means restaurants must turn into a pumpkin when the clock strikes 12. If you want the long version of that:
It gets more interesting: the state included a declaration by Dr. Elizabeth Dufort, Director of Epidemiology for the NYS Department of Health, and the judge ordered her to appear at the hearing for questioning. This is perhaps the first time I’ve seen a judge take serious interest in examining the facts, seemingly triggered by Dr. Dufort’s apparent expertise in everything from how people behave in bars, to how restaurants handle arriving and departing guests, to the details of state law, to medicine (the latter of which I concede she may be qualified to discuss).
The government apparently did not like that order, and filed a motion for reconsideration, noting that Dr. Dufort was not available and that her testimony does not matter because “the government is not required to justify an executive order.” After a scathing opposition, they “found” the Dr. and withdrew their motion.
I very much look forward to asking Dr. Dufort some difficult questions tomorrow.
Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.
The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?
It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.
“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”
The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.
The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.
The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.
I shared last week a new lawsuit filed by me on behalf of the food service industry in New York, challenging the state’s ban on advertising music or charging admission to enter any establishment in New York licensed to sell alcohol. As a small update, we filed a motion for a temporary restraining order against the state today…
As continued speculation, perhaps the government believes that people who attend events with advertised music will somehow behave differently at these events. But this fails for two reasons. First, no matter whether there is music or not, the rules require all establishments to keep their guests seated, at tables, and order a meal. Dancing – or any other conduct likely to occur in the presence of music that requires leaving one’s seat – is prohibited. A person sitting a table, eating a meal, and enjoying a live music performance is no more likely to spread coronavirus than one doing the same in silence. Second, whether there is advertising or not, music is still permitted. The advertising of the same does not change a thing about the behavior of the guests. It also would not limit third parties 3 from collecting a list of establishments that feature music and distributing it on social media. This would make the rule futile, and it would be naïve to think that this is not already happening. A futile rule is, obviously, not “reasonably necessary.”
I expect there will likely be a hearing scheduled within a matter of days. The case has been assigned to U.S. District Judge Gregory H. Woods, an Obama appointee and quite capable jurist.
Last week, the New York State Liquor Authority announced a rule that food service establishments licensed to sell alcohol could no longer advertise any music offered during the dining experience, in a rule absurd enough to surely have been drafted by Governor Andrew Cuomo himself. This rule, which also bans tickets or admission charges to food service establishments, is a clear violation of the First Amendment rights of the state’s liquor licensees.
By and large, the food service industry has done its best to comply with each and every rule and request of the Governor and his agencies in order to provide a safe environment for the public. However, the industry has received no financial support from the state, and the cost of complying with rules that change on a near daily basis is destroying the industry. It is predicted that 1 in 3 food service establishments in the state will never reopen as a result. When all establishments are requiring seated table service, limited capacities, and social distancing, announcing the music selection or having a cover charge simply does not contribute to the spread of coronavirus.
I’m pleased to note that I now represent the New York Independent Venue Association and 9 of its members across the state in taking the New York State Liquor Authority to court over the matter. Case No. 20-CV-6870 in the United States District Court for the Southern District of New York.
A few weeks ago, I received an e-mail from a “prospective client” in the U.K. requesting help with a straight-forward contract matter. Contract litigation isn’t exactly why I went to law school, but something I do help out with from time to time…
(Identifying information redacted because I’m fairly sure the scammer stole the identity of an innocent person and company.)
We discuss more — both phone and e-mail — and he sends me a signed contract and invoices indicating that he was owed $150K for architecture services: CAD drawings of a residential home. No problem, I’m a California lawyer, you want to sue a California client for breach of contract, you have a signed writing, and if they can afford $150K just for architecture on their residence, they probably have some cash to collect. Good deal.
I send over a retainer agreement and he promptly returns it signed. Now all I need is the retainer deposit and — oh, wait, an e-mail indicating that the other side wants to settle the matter and I should hold on! Several days later, I receive a cashier’s check and a note from my client saying that they resolved it and he just needs me to deposit the check, take my fees out of it, and send me the money.
For the uninitiated, this is a variation of a classic check scam: someone purchases any kind of goods or services and overpays you in some way “by accident.” But, no problem, just deposit the check, send them what they ordered, and whatever the extra is, just wire it back to them! Of course, the check is a forgery and because American banks are still in many ways stuck in the 20th century, it often takes them several days to let you know, “hey asshole, you got robbed!” In the meantime, you’ve sent their order and a whole bunch of cash that you now owe the bank, and they’ve disappeared never to be seen again.
This would have cost my clients nearly $100,000 (as the check would be deposited into, and the soon-to-be-reversed proceeds wired from, my client trust account), which I’m quite sure the State Bar would expect me to repay out of my own funds. Your insurance may not cover this (the banks sure won’t — it was you who initiated the wire, right?). Spotting the scam early, I insisted that the “client” pay the retainer deposit first rather than take it out of the cashier’s check, which after a bit of arguing caused the “client” to take his business elsewhere.
Be wise, business owners… there are people trying to take advantage of you everywhere and they don’t care if you’re ruined as a result. In the law world, having a solid retainer agreement, requiring a deposit before beginning any legal services, and being suspicious of irrational client requests — like being “paid” to move $100K for an agreement I didn’t even negotiate — saves the day. And of course, make sure any check actually clears (not just becomes temporarily available, but call the bank and confirm they have the funds from the sender’s bank) before wiring money away.
As I considered re-instatement of my lawsuit against the travel quarantine, voluntarily dismissed because of Cuomo’s failure to enforce, I noticed something new in the Health Department’s order: anyone who can demonstrate that they shouldn’t need to be quarantined can request a hearing.
Well, isn’t that fancy? I, for one, am going to take him up on it, and I encourage everyone who might possibly travel to New York to do the same. So here’s a quick sample of what a hearing request might look like*:
* This form is a sample document preparation. It is not legal advice; legal advice can only be provided by a licensed attorney who has reviewed your particular circumstances. No attorney-client relationship is created by your downloading or use of these documents. Please do not e-mail me questions about use of this form; I would only be able to respond if and when I agree to be retained to assist with your case.
At the end of last month, I had asked a federal court to issue a temporary restraining order against Cuomo’s enforcement of the 14-day travel quarantine currently in effect on those coming to New York from 19 different states, on the simple premise that you can’t protect an area that is already broadly infected (as the entire state of New York is) by use of a quarantine. A judge refused to issue the order last week, ruling that while the quarantine burdened my right to travel, it was my job to overcome the government’s showing that they had “considered” other options and felt the quarantine was necessary. In their opposition to my motion, New York presented not a single model, not a single health organization’s (or even a single doctor’s) opinion that a quarantine is necessary in this situation, and not even a prediction of how many cases this would likely prevent. It seems to me that when the government wants to take our liberty, it should be their job to demonstrate the need to do so, but motions for temporary restraining orders are quite discretionary and unappealable. That said, the case was free to continue without the temporary relief — although by the time it would be decided, the quarantine would very likely be over.
I’ve decided not to continue this court fight for that reason and because it seems clear to me that the Governor has no intent to actually enforce this quarantine. To that point, first, last night I flew LAX to JFK, which means I was directly incoming from a state that Cuomo announced had coronavirus statistics that were so high that incoming travelers must self-quarantine for 14 days. However, no attempt was made to compel the production of any data that would allow the enforcement of the quarantine: although the government had produced a poorly-designed form to collect information, no one was even trying to force travelers to fill it out…
There was merely a table by the baggage claim, with a Health Department employee sitting on his laptop paying no attention, offering the form up to travelers. No person sought to inform travelers to fill out the form, and there were not even ropes to guide travelers past the kiosk. While a handful of travelers stopped and fellated the Governor’s ego, the remainder either didn’t see it or, like me, saw it and walked right past.
Second, in the days after the quarantine was announced, the state made clear that “essential workers” are exempt from the quarantine. That is, if you work for any essential business, you’re free to go on vacation to Miami, Los Angeles, Barcelona, Rome, or Wuhan, China, and then come back to work without the need to quarantine. This means if you are a waitress, a bartender, a dog walker, a janitor, a gas station attendant, a mechanic, a bank teller, a federal government employee, a transportation employee, work in a medical field, or one of several dozen other jobs, you’re exempt. By my calculation, this is more than half of the workforce that is exempt. And if you’re not yet exempt, find someone in New York that will let you walk their dog and you will be.
I’ve not changed my mind that the Governor’s quarantine is wrong and unconstitutional. But given that it seems to be mere bloviation from Cuomo with no teeth at all, it is not worth spending 40 – 100 hours over the next 18+ months fighting. So today I file a notice of voluntary dismissal. Such dismissals are “without prejudice,” meaning I can bring the case back later if I’d like, and I’ll keep an eye on the situation. That said, if anyone is actually fined or detained because of the quarantine, I would be most eager to speak with them about their case.
On June 24th, New York Governor Andrew Cuomo announced a mandatory 14-day quarantine, under penalty of forcible quarantine and large fines, for anyone entering the state from any of 9 “coronavirus hotspot” states. As you cannot protect a population that is already broadly infected by “quarantine,” I immediately filed suit against this irrational and unconstitutional restriction on our right to travel between the states.
A hearing is scheduled for Thursday at 2 PM on my motion for an emergency temporary restraining order in front of U.S. District Judge Lorna Schofield in the Southern District of New York. But in the meantime, the Governor has doubled-down by expanding his list to a total of 16 states:
This list, including the 1st, 2nd, and 3rd most populated states, includes about half the population of the country.
I look forward to seeing Cuomo’s people in court on Thursday. In the meantime, I’ve filed an amended complaint adding details and challenging the allegedly mandatory form that travelers must fill out when crossing the border (see Exhibit B for that one)…