A Long Island strip club owner is suing both Gov. Andrew M. Cuomo and the federal government, charging their actions in response to the coronavirus pandemic violated the owner’s constitutional rights and ruined his business.
The suit also asked that if a judge does not permanently overturn those actions, that at least the club should be granted an injunction opening the club while the suit is argued in court.
But Wednesday afternoon, the federal judge overseeing the case, Allyne Ross, denied the injunction, saying the club was wrong in its interpretation of the state and federal law as it applied to both Cuomo and the federal defendants.
Ross also said given her ruling, the club “may be well-advised to voluntarily withdraw” the entire lawsuit.
One of the club’s attorneys, Peter Crusco, however, said in response to the decision: “We respectfully disagree with the judge, are considering our options, and plan to proceed with the case.”
The Commack club, Blush, had been in business since 1997, until it was shut down in March as part of Cuomo’s ban on the operation of strip clubs, imposed as part of the overall closing of places of entertainment such as restaurants and bars.
The club owner, Sean McCarthy, who brought the case in May, is seeking unspecified monetary damages from the governor and the federal government for what he calls the “catastrophic” financial situation resulting from the shutdown, as well as pay for his employees.
The federal government’s actions, the club argues in the federal lawsuit, include the Small Business Administration allegedly discriminating against the business under the Payroll Protection Program because of a policy of denying loans to businesses that provide “live performances of a prurient sexual nature.” The SBA policy predates the coronavirus pandemic.
Eastern District Assistant U.S. Attorney James Knapp, in response to the club’s suit, says in court papers that Blush has every right to try to operate, but that does not mean that the government legally has to pay to keep a strip club open and support its payroll.
The club argues that, under state law, the legislature did not have the constitutional authority to pass on to Cuomo the right to order businesses to be closed.
“The Governor has engaged in an overly broad, over inclusive, overly restrictive infringement of our fundamental freedoms,” said Joseph Murray, who is representing the club along with attorney Peter Crusco. “He did so through an illegal transfer of legislative authority from the NYS Senate and Assembly, in violation of … the NYS Constitution."
Nude or partially nude dancing has long been protected as freedom of expression under the First Amendment, Murray noted, so the SBA policy is, at the very least, “archaic.”
An attorney for Cuomo has replied in legal papers that the club’s arguments are “based on a hodgepodge of constitutional arguments, all of which lack merit.”
And Cuomo’s spokesman, Rich Azzopardi, said of McCarthy’s lawsuit: “This executive authority was passed by the legislature and, as we were able to bend the curve to get through this public health crisis as 20 other states are spiking, it was clearly necessary to fight this pandemic. ”
The club is also suing Suffolk County, as an agent enforcing Cuomo’s closure orders, and names as defendants not only the Small Business Administration, but also Jovita Carranza, the administrator of the SBA, and Steven Mnuchin, the U.S. secretary of the Treasury.
Derek Poppe, a spokesman for Suffolk County Executive Steve Bellone, said “Due to the pending litigation we are unable to comment at this time.”
Dennis Cohen, the Suffolk County Attorney, said in court papers: “the county takes no position regarding the underlying merits of the case. ”
John Marzulli, a spokesman for Eastern District federal prosecutors who represents the SBA and the federal officials being sued, declined to comment.
With Yancey Roy
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