BUFFALO, N.Y. — Zoom Tan is among the latest companies asking for a court’s intervention in order to stay open in Covid 19 “orange” zones as designated by the state.
The Florida-based chain of tanning salons seeks a temporary restraining order/preliminary injunction to keep its Erie County locations open, despite the county having been designated an orange zone by Governor Cuomo due to a rising number of COVID-19 cases.
In a petition and complaint filed in in Erie County Supreme Court which names the governor, Erie County Executive Mark Poloncarz, and the county’s Health Commissioner Dr. Gale Burstein as defendants, the company makes several assertions as to why it believes may be unfairly shut down and asks a judge for relief.
Zoom Tan Says it's Not a Personal Care Business
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.
In its filing the company maintains that “Zoom Tan is not a ‘personal care’ business because, unlike high-risk businesses 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 salons have been arbitrarily and capriciously targeted for closure.
Further, Zoom Tan says its customers “have only limited interaction at the point of sale-interaction that is less substantial than customers will experience at many other types of retail locations such as grocery stores, convenience stores, pharmacies, clothing, and sporting goods stores, as well as bowling alleys and movie theaters all of which are permitted to remain open under the ‘Orange Zone’ guidelines.”
Zoom Tan has 13 locations in Erie County.
One Location Shut Down
According to Zoom Tan, it received a deficiency notice and shutdown order from the Erie County Department of Health for its Hamburg location one week ago, indicating that it was required to shut down as a result of Erie County's designation as an "orange zone," as well as an unspecified condition which, according to the notice, was "detrimental to the public health and safety."
However, the company and its lawyer, Buffalo attorney Terrence Connors, note that there was no detrimental conditions identified or described in the closure order, and therefore “it is apparent from the vague and conclusory nature of the notice that the Department of Health is unable to specify any conditions at Zoom Tan ‘detrimental’ to the public health and safety."
Zoom Tan is also raising the view expressed by some health experts that increased vitamin D levels associated with UV exposure are beneficial to the public health and combatting COVID-19.
What's at Stake
The two sides are due in court next Wednesday where the plaintiffs are expected to ask a judge to find that Zoom Tan's salons should not be placed in the category of personal care businesses, so they can remain open at locations in Erie County or any other orange zones that may be declared in the future.
In court papers the company says, “Customers who do not find it convenient to use a Zoom Tan location outside of the ‘Orange Zone’ will cancel their memberships, resulting in an immediate and permanent loss of business relationships and goodwill for Zoom Tan.”