BUFFALO, N.Y. — New York State Supreme Court Justice Diane Y. Devlin adjourned an argument scheduled for Wednesday, in order to give careful consideration to the latest motion filed by Zoom Tan in its case against the State of New York.
The Florida-based chain of tanning salons, with several Erie County locations, seeks to continue to provide service despite the county being designated an orange zone by New York Gov. Andrew Cuomo amid rising numbers of COVID-19.
Under the orange designation, a host of personal care businesses were ordered shuttered.
However, Zoom Tan argues that it is not a personal care business as defined by the state.
Further, Zoom Tan contends that unlike the high-risk businesses (as designated by the state) such as beauty salons, nail salons, barbershops, and gyms, Zoom Tan's services are completely touchless and therefore do not present an increased risk of spreading Covid-19”.
By lumping its tanning salons in with those other businesses, the company says its tanning salons have been arbitrarily and capriciously targeted for closure.
The state tried to get the suit dismissed by arguing that it was improperly served, and offering the opinions of Dr. Debra S. Blog, Director of the Division of Epidemiology for the state health department.
She is the same expert the state relied on when it recently lost a case before the U.S. Supreme Court regarding restrictions on religious gatherings.
In a reply to motions filed b y the state, lawyers for Zoom tan contend that her affidavit regarding this case were simply "insufficient to overcome Zoom Tan's showing of entitlement to relief."
For example, While Dr. Blog argued in her affidavit that indoor tanning is dangerous for health (and although Zoom Tan disputes this argument) the companies lawyers note that "the purported dangers of indoor tanning have no bearing on whether Zoom Tan's services should be classified as a "personal care" business."
Further, they argue that while Dr. Blog's affidavit does contain important information about COVID19, "the proof still would not demonstrate any rationale whatsoever for closing a Zoom Tan location while allowing a corner store or liquor store down the street to remain open."
"Nowhere in her affidavit does Dr. Blog state that Zoom Tan's touchless tanning services increase the risk of COVID-19 or that Zoom Tan's operations are not socially distanced. In other words, far from demonstrating how Zoom Tan's operations are more dangerous than any retail operation, Dr. Blog did not even attempt to do so," said the legal team lead by Buffalo Attorney Terrence M. Connors.
Lawyers for Zoom Tan are also raising issues regarding the constitutionality of the Governor's orders.
Justice Devlin did not set a date for further arguments, or indicate whether she might render a decision.