DALLAS, Texas — In New York state, shopping malls are open. Restaurants are open. Casinos, bowling alleys and gyms, too, are open. Dave and Buster’s, however, has not been allowed.
Last week, Dave and Buster’s filed suit in U.S. District Court for the Northern District of New York against Gov. Andrew Cuomo. In a 14-page argument, the Dallas-based entertainment and dining business claims the governor violated both state and U.S. constitutions and is seeking declaratory and injunctive relief.
“One of the nation’s leading arcade and restaurant chains, brings this action to challenge the arbitrary and unconstitutional decision by Governor Cuomo to close down all arcades statewide while allowing comparable businesses, including casinos, bowling alleys, and video lottery gaming facilities, to remain open,” reads the suit. “The arcade shutdown has resulted in the loss of thousands of jobs for hard-working New Yorkers across the State, and threatens to jeopardize Plaintiff’s market share and the long-term economic viability of Plaintiff’s New York stores, all without cause.”
Dave and Buster’s closed its New York venues in March once Cuomo issued shutdown orders across the state to mitigate the spread of COVID-19. Since then, the governor’s office has opened industries in a piecemeal fashion, including restaurants, casinos and bowling alleys. The restaurant’s unique business model, however, has essentially excluded it from reopening.
Last month, Dave and Buster’s reported a 75 percent decline in store sales over the first nine weeks of the fourth quarter compared to the previous year. About 65 percent of its stores remain open across the country. Before the pandemic, Dave and Buster’s employed over 1,200 team members at eleven locations across New York state. Due to the shutdown, the chain has furloughed all but forty of them.
Stores and New York and California, 27 in total, remain closed despite mitigation measures the chain said it implemented from the beginning.
Dave and Buster’s argues that it was one of the first national chains to implement daily temperature checks and to require all guests and employees to wear masks, and that stores continue to safely operate “in virtually all of the states in which it does business…” Those measures include modified store layouts, frequent cleanings of all surfaces throughout the day by dedicated staff and installation of multiple hand sanitizer stations.
“It has repeatedly offered to comply with any reasonable public health guidelines that New York might prescribe,” states the suit.
Cuomo launched a tiered system to reopen industries across the state, a timeline in which Dave and Buster’s captured in its suit. The restaurant chain has sat idle as museums and art galleries opened last June, bowling alleys and gyms last August, casinos last September and movie theatres last October.
“[Cuomo] has never publicly explained how arcades are meaningfully different… in the context of COVID-19,” states Dave and Buster’s. “Museum, aquarium, and art gallery guests engage in similar activities to arcade guests. Guests often visit with groups of family or friends and they typically spend extended periods of time indoors. They move throughout the facility and touch shared surfaces. Yet these ‘low-risk indoor arts and entertainment’ facilities are permitted to operate under safety protocols that are similar to what [Dave and Buster’s] has adopted in other states. …
“Such disparate treatment for similarly situated businesses has no countenance under the laws and constitutions of the United States and the State of New York.”
Dave and Buster’s location at Crossgates Mall has remained closed since shutdowns were first mandated last March.
