"This vaccine mandate is arbitrary and capricious due to the fact that it targets certain establishments but not others," wrote the plaintiffs, led by a group called the Independent Restaurant Owners Association Rescue. Max's Esca, DeLuca's Italian Restaurant, Pasticceria Rocco, Evolve-33 and Staten Island Judo Jujitsu were also listed as plaintiffs. They're seeking a permanent injunction against the order.
Staten Island Judo Jujitsu Dojo owner Joseph Cannizzo said the executive order is a "death sentence" to small businesses.
"For some reason, gyms, restaurants, we're always the ones that have to take on this social responsibility to keep people safe. It's not our job," Cannizzo said. "My chances of survival are slim to none with all the other mandates and restrictions that Mayor de Blasio has put on my studio. It's a business death sentence."
According to the lawsuit, the mandate will "severely impact" the owners' businesses, life savings and livelihood.
Restaurants and gyms throughout the city argue that the new rules are unfair because they don't apply to other indoor spaces where people congregate for long periods of time, such as grocery stores with long lines and crowded office buildings. (Related: Bill de Blasio threatens to expand "vaccine passport" requirements in New York City: Are grocery stores next?)
Eateries that offer only take-out, delivery and outdoor dining are not required to ask customers for proof of vaccination but must remove or block off any indoor seating and tables.
"There are many other venues that involve groups of 'unassociated people interacting for a substantial period of time' such as grocery stores, pharmacies, hair salons, churches, office buildings, schools, healthcare facilities, etc. and yet these venues will not require vaccination of all workers and patrons," the plaintiffs said.
They also noted that De Blasio's mandate makes no exceptions for those who can't or shouldn't get the COVID-19 vaccine.
On Wednesday, Aug. 18, de Blasio said he would keep his comments on the lawsuit limited, but added that he had tremendous confidence that they're in a strong legal position. "We're in a global pandemic still. The decisions that have been taken have been taken with the leadership of our health officials who have been fighting this battle from the beginning, and we know we must get more people vaccinated," he said.
De Blasio's mandate is discriminatory and un-American
Some business owners have raised concerns about the mandate being discriminatory and un-American, about the rollout of fake vaccine cards and about restaurant staff having to bear the brunt of potential customers' outrage over the new rule.
Other restaurant owners have expressed concerns about some of their workers quitting if they're required to be vaccinated. Art Depole, who co-owns a Mooyah Burgers, Fries and Shakes franchise with his brother Nick in midtown Manhattan, said that some of his employees were not planning to get vaccinated. In a tight labor market, replacing those workers can be a huge challenge.
De Blasio's controversial "Key to NYC" scheme officially kicked off Tuesday, separating the vaccinated and the unvaccinated in day-to-day life for the first time in a U.S. city. The cities of New Orleans and San Francisco have since followed suit with similar mandates.
New York's rules require staff and customers at dining, entertainment and fitness venues to have at least one dose of a coronavirus (COVID-19) vaccine to enter indoor spaces. Enforcement won't begin for another 25 days. Starting Sept. 13, businesses that don't comply will be subject to fines.
Mary Josephine Generoso, manager of Pasticceria Rocco, responded to the mayor's rules by erecting a huge sign outside of the bakery's Bay Ridge location welcoming "vaccinated or unvaccinated" customers into the dining room.
Under the new rules, anyone aged 12 and older must show proof of vaccination to dine indoors in New York City's restaurants. Customers can only dine outdoors if they fail to show their vaccine passports. Restaurant servers and bar staff have been designated as public enforcers of the mayor's new mandate.
The Key to NYC had an uneven start, with many businesses opting out until they absolutely have to. (Related: NYC restaurants REFUSE to enforce vaccine passport mandate and become "vaccination police.")
On Wednesday afternoon, fast-food restaurants in Manhattan were not yet asking for Centers for Disease Control and Prevention (CDC) vaccination cards or Excelsior passes, and the AMC Village 7 movie theater in the East Village said it hadn't been checking.
A man in the East Village told DailyMail.com that he got takeout from Chipotle with no issues. He said he was only asked for his vaccination card at a bar.
Republicans back business owners' lawsuit
Prominent Republicans like New York Rep. Nicole Malliotakis and City Council member Joe Borelli are backing the business owners' lawsuit.
Malliotakis announced the lawsuit at a press conference earlier this month. She was joined by attorneys Louis Gelormino and Mark Fonte. Also present were Cannizzo and Charlie Cassara, who owns two gyms on Long Island and heads the U.S. Fitness Coalition.
"The U.S. Fitness Coalition is not anti-vaxxers. We are in the business of keeping people healthy and fit through proper nutrition and exercise," Cassara said. "The city does not have the right to tell us who we can serve for any reason – that decision is up to us as private business owners."
Cassara had already sued de Blasio last year after the mayor removed gyms from the city's Phase 4 reopening list. He has appeared on Fox News, where he spoke about how difficult it was for some customers to feel comfortable under the mayor's rules for gyms.
"For instance, in order for us to get rid of the social distancing inside of our gyms, we have to take people's vaccination cards. This is creating a big problem between people who don't want to give it or haven't been vaccinated," he said.
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