Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

• California (Democratic trifecta): Gov. Gavin Newsom (D) announced that Oregon and Washington agreed to participate in a multistate pilot test of Apple and Google’s exposure notification technology. The technology notifies individuals who may have been exposed to someone who tested positive for coronavirus based on geolocation data.

• Delaware (Democratic trifecta): The state announced the launch of the COVID Alert DE app on both Apple and Google devices that use Bluetooth technology to alert users who may have been exposed to someone who tested positive for coronavirus.

• Mississippi (Republican trifecta): Gov. Tate Reeves (R) extended the state’s Safe Return order through Sept. 30. Reeves amended the order to allow 75% capacity at businesses like gyms, restaurants, and retail shops. The amended order also allows social gatherings of up to 10 people indoors and 50 outdoors when distancing is not possible or 20 indoors and 50 outdoors with social distancing.

• North Carolina (divided government): On Sept. 17, Gov. Roy Cooper (D) announced that elementary school and charter school students can return to classrooms at full capacity beginning Oct. 5. Students, teachers, and staff will be required to wear face coverings, and schools will need to enforce social distancing and screen for symptoms.

• Pennsylvania (divided government): Gov. Tom Wolf (D) and Health Secretary Rachel Levine signed an order allowing restaurants to expand their maximum capacity to 50% starting Sept. 21.

• Texas (Republican trifecta): On Sept. 17, Gov. Greg Abbott (R) announced that several types of businesses, including retail stores, restaurants, and office buildings in 19 out of the state’s 22 hospital regions will be permitted to expand operating capacity to 75% on Sept. 21. Those businesses are currently limited to 50% capacity. Abbott did not say when bars would be allowed to reopen.

• Washington (Democratic trifecta): On Sept. 16, Gov. Jay Inslee (D) released updated guidelines allowing for wedding and funeral ceremonies of up to 30 people or 25% of the maximum building capacity in counties in Phase 2 and 3 of reopening. Ceremonies are subject to several restrictions, including face covering requirements (except for the bride and groom) and social distancing. Wedding receptions cannot last more than three hours, and ceremony hosts are encouraged to keep logs of guests for up to two weeks.

Daily feature: Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving COVID-19 restrictions in New York.

The Cloister East, Inc. v. New York State Liquor Authority

On Sept. 11, Judge Arthur F. Engoron of the New York County Supreme Court granted a temporary restraining order against the New York State Liquor Authority (SLA), allowing an East Village cafe to reopen.

What is at issue?

The Cloister Cafe was shut down in August after authorities alleged it had hosted secretive late-night parties in violation of COVID-19 restrictions. The cafe challenged the shut-down in federal court, but Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York denied the cafe a temporary restraining order and preliminary injunction. The cafe then initiated an Article 78 proceeding in state court. Article 78 proceedings are used to appeal the decision of a New York state or local agency to state court. In its complaint, the cafe argued that SLA had deprived it of its liquor license in violation of state law and its constitutional rights. The cafe alleged the license revocation was done without notice, “or any pre-suspension opportunity to be heard,” in violation of the Fourteenth Amendment’s guarantee of procedural due process.

How did the court rule?

In his order, Engoron did not specify why he granted the temporary restraining order. He did say that “any credible evidence of a significant future infraction [on the part of the cafe] will result in immediate reinstatement of the suspension.”

What are the reactions, and what comes next?
Robert Garson, an attorney for the cafe, said it “may provide a light at the end of the tunnel for all of those restaurant and beverage workers who have also had their licenses summarily and unconstitutionally stripped from them.” In a statement to the press, the SLA said it “will continue to vigorously defend the state’s actions and remain laser focused on protecting New Yorkers during this pandemic.” A full hearing on the merits is scheduled for Oct. 5.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

• New York City Mayor Bill de Blasio (D) announced an additional delay to in-person instruction. K-5 and K-8 schools will remain remote-only until Sept. 29, while middle and high schools will remain remote-only until Oct. 1. 3-K, Pre-K, and special education schools will reopen Sept. 21.