A group of small theaters and comedy clubs, many of whom previously sued the city over pandemic restrictions that kept their businesses closed in 2020, are once again suing the city. This time, the clubs are suing over "unequal" vaccination requirements, which they say allow those same (or similarly-sized) venues to be used for religious gatherings with no restrictions, while negatively affecting their ability to bring in crowds and stay in business.
According to the lawsuit, which was filed in Manhattan federal court by lawyers at the Pacific Legal Foundation and Mermigis Law Group, the "Key to NYC" mandate is "burdensome and further stigmatizes businesses that are already struggling to bounce back from being shut down last year."
They argue the mandate "applies differently to venues depending on who is speaking and what they are saying," most prominently because of the exception for religious services.
The businesses involved in the suit, which are all located in Manhattan and have a capacity of 200 or less, are the Theater Center (which includes the Jerry Orbach Theater and The Anne L. Bernstein Theater), the Players Theater, Actors Temple Theater, SoHo Playhouse, and Broadway Comedy Club. You can see in the below video how small these spaces are:
The Theater Center rents out the Orbach Theater for church services, and "at 11 a.m on a Sunday morning, they can let anyone in, they're not strict with mask enforcement or anything," said attorney Daniel Ortner of Pacific Legal Foundation. "Two hours later, the theater has a performance, and they have to turn anyone away who can't prove they're vaccinated. That is blatant inequality of treatment, purely based on content of speech, so we are therefore arguing it's a First Amendment violation."
Ortner says that the mandate has become "really burdensome," noting the Theater Center has had to give refunds to people for performances, and hire more staff to check the vaccination status of patrons. He added that staff has had patrons yelling at them "every single performance," and claimed some have been spit on and harassed, with employees quitting as a result.
This is something restaurants have also experienced—last week, a fight broke out at Carmine's Italian Restaurant on the Upper West Side due to a "verbal dispute over vaccine cards."
The vaccine mandate, which requires businesses to check customers’ vaccine status for indoor dining, concerts, fitness centers and other prolonged indoor activities, went into effect on August 17th, but the city only started enforcing it on September 13th. Businesses that don’t comply are subject to a fine of $1,000 for a first violation, $2,000 for a second, and $5,000 for subsequent violations.
The list of exemptions includes residential and office buildings, churches, community centers, and schools for pre-K through 12th grade.
Last year, several of the same theaters and clubs sued the city and state because comedy clubs and theaters were among the last businesses not allowed to reopen even when malls, casinos, churches, movie theaters, restaurants, and gyms were given the go-ahead to resume with restrictions in place.
Ortner noted that last year's lawsuit is still ongoing (they are seeking damages from Mayor Bill de Blasio for his part in the shutdown), but he claims the overall effect between the various shutdowns and mandates has been to stigmatize the theater industry.
"These places have been treated as more dangerous [than other cultural venues], and they continue to be treated that way by the mayor," he said. "These places want to be recognized, they want that stigma lifted and to be treated fairly and equally."
In response to the lawsuit, the New York City Law Department told Reuters, “Vaccination unlocks everything New York City has to offer to help us recover from this pandemic, and we will continue to vigorously defend the Key to NYC Order."
In the last couple of weeks, several major Broadway shows have reopened for the first time since March 2020; all Broadway workers and audiences must be vaccinated to enter a theater, and they must wear masks inside except when eating or drinking in certain sections. (Some shows, like Wicked, are not letting people eat or drink inside the theater.)
Almost 62% of NYC residents are fully vaccinated, and nearly 69% have received at least one dose of vaccine. Vaccinated New Yorkers make up just 4% of COVID-19 infections so far this year, and unvaccinated people were 21 times as likely to be infected or hospitalized statewide, according to data provided by the New York State Department of Health.
