The financial losses reach into the millions at the establishments familiar to everyone: Duff’s Famous Wings and Santora's Pizza Pub and Grill.
But the losses in the tens and hundreds of thousands of dollars are every much as crushing to the smaller restaurants better known in their own locales, like Londa's Diner in Depew and Raphael's in Hamburg.
Two dozen Buffalo area restaurants – big and small, with offerings from pub food to Italian cuisine, but all under an indoor-dining ban – submitted court affidavits this week detailing more than $10 million in financial losses for 2020 and 856 job cuts since March. They're among the 70 restaurants that signed on to a State Supreme Court lawsuit seeking a relaxation of state Covid-19 safety precautions.
Losses at Santora’s Pizza Pub and Grill establishments on Transit Road and Millersport Highway in Amherst total $3 million, at a minimum, and that doesn't include what happened at Walden Galleria, where a third Santora's shut down two weeks after opening.
"It’s just an unfathomable situation," owner Paul Santora said.
Patrons can eat inside Niagara County restaurants only miles away from Amherst Pizza & Ale House in Getzville, owned by John Bona III.
"It’s literally a five-minute drive," Bona said. "It doesn’t make sense."
"There's not a reason other counties can be open, and Erie County patrons can go to those places, but Erie County is one of eight counties in Western New York that has restaurants closed," Santora said.
The owners and their employees are hurting, according to affidavits from the restaurateurs.
The losses for the Duff’s on Dick Road in Depew alone total approximately $1 million, according to its affidavit. Duff's Transit Road location reported $640,000 in losses. The loss was smaller at the Duff's on Sheridan Drive: $129,462.
The ban on sit-down dining has meant losses of $3,500 a week at Raphael's, the Italian restaurant in Hamburg. The 2020 loss at Londa's Diner total $80,000, at a minimum, including money spent for personal protective equipment.
The two dozen businesses filing affidavits employed 1,031 employees in March. They now employ 175. And the three Duff's locations account for one-third of the remaining employees.
"It’s staggering," attorney Steven M. Cohen said of the financial and job losses among the restaurants he is representing in the lawsuit.
"Restaurants are teetering on the edge of bankruptcy and insolvency," said Cohen, an Amherst attorney noted for his constitutional challenges.
The restaurant owners say if the current shutdown continues for a period of months, they will be financially unable to resume normal business operations.
In their affidavits, many warned of the "complete loss of my business and my home" because of the state rules banning indoor dining in areas designated by the state as an "orange zone," which has covered most of Erie County since Nov. 18. Color-coded zones are part of the state's microcluster strategy, designed to target Covid-19 hot zones while avoiding more sweeping regulations such as the state's "pause" this spring that shuttered all nonessential businesses.
Dining establishments in the orange zone are allowed to offer only outdoor dining and takeout/delivery service. Since outdoor dining in the winter is not feasible for many of them, the restaurant owners said, the practical effect of the restriction is to completely discontinue all sit-down dining, which is the same restriction imposed under the “red zone."
"We’re just doing takeout business," said Bona of Amherst Pizza & Ale House.
He said he spent thousands of dollars on natural gas lines and tent heaters to make patio dining more comfortable.
"But it’s still not an experience people are coming out for," Bona said.
Bona said the Covid-19 restrictions led to losses of $875,000 in 2020, which includes $20,000 for PPE.
He has retained only kitchen staff.
"It was extremely difficult," he said of making the employee cuts.
"We've been in business for 16 years," he said. "Our staff, like at other places, are a family amongst themselves and their customers."
The two dozen owners, in their affidavits, said no Covid-19 cases have been traced to their businesses. They said they were able to safely operate when Erie County was designated as a “yellow zone” and could offer indoor dining. They say they have not heard any reason why they would be unable to safely operate following the same safety protocols under the orange zone designation, or under a red zone designation if it is made.
"We would not have sued if we were still under the yellow zone," Bona said. "It was a compromise. In the yellow zone we were OK. In the current zone, we are not OK."
The lawsuit names Gov. Andrew M. Cuomo, the New York State Legislature, and state agencies, including the Department of Health, the Department of Economic Development and the State Liquor Authority, as well as Erie County Executive Mark Poloncarz and the county Health Department.
Last month, Cuomo cited recommendations from the Centers for Disease Control and Prevention that described eating at indoor restaurants as a “particularly high-risk” activity. The governor said "we're going to watch the indoor dining data" outside of New York City and in the orange zones and make adjustments if the data suggests doing so. At his Dec. 11 briefing, he called on the federal government to provide relief to bars and restaurants.
"I understand battling Covid," Cuomo said at the briefing. "I also understand you're wiping out businesses. We'll do what we can in New York."
Some 1,131 Erie County residents have died from Covid-19, according to the county's dashboard, updated Thursday.
A court hearing on the restaurants' lawsuit has been scheduled for Jan. 8 before Justice Henry J. Nowak.
"The state will have to show proof that its measures are scientifically based, because it appears according to contact tracing that restaurants are not the source of the spread," Cohen said.
"The governor is taking measures not based on science," he said. "Before people's constitutional rights are trampled, there has to be a rational basis and choosing the least intrusive methods, and this the state cannot show."
Cohen said that at Cuomo's Dec. 11 news conference, the governor presented data showing that only 1.4% of Covid-19 cases were traceable to restaurants and bars.
Courts across New York State and the nation have generally supported pandemic-related executive orders and policies, if they're backed by expert, scientific advice. But businesses and churches have won court rulings from judges perplexed by how governments applied their rules in some cases.
About 30 restaurants had signed onto the lawsuit when it was filed Christmas Eve. Now, around 70 restaurants are part of the lawsuit, including seven establishments that joined Thursday.
Among the restaurants involved in the lawsuit: Howling Rooster, Town of Tonawanda; Prescott's Provisions, City of Tonawanda; The Byrd House, Orchard Park; Mambrino King, East Aurora; 99 Brick Oven Bar & Grill, Lancaster; and Buffalo Brew Pub, Amherst.
Santora said Erie County should return to the yellow designation.
"Our guests, 100% who walk in the door, cannot understand what this county is doing," he said. "It doesn't make any sense. And they’re disgusted by those who are not standing up for the county."
