Decisions by state and Erie County officials that prompted an order to close a laser-tag center in Amherst as a Covid-19 precaution “were haphazard and devoid of logic,” according to a judge’s ruling Monday. State Supreme Court Justice Emilio Colaiacovo granted Lasertron a preliminary injunction to keep authorities from enforcing the order.
“Wholesale determinations such as the one made here by executive fiat at the expense of the rights of individuals and businesses, without a right of appeal, cannot be permitted to continue,” Colaiacovo wrote in his decision. The judge said the Erie County Department of Health and Empire State Development Corp. did not answer why certain indoor activities were permitted and others, such as laser-tag, were not.
The agencies contend that indoor soccer, for example, is not a physical activity that involves physical contact, the judge said. They “clearly have not observed many youth soccer games,” Colaiacovo wrote. “Arguably, there is more physical contact in youth soccer where participants chase after the same ball, than, for example, laser-tag, where the object is to stay as far away as possible from your opponent.” The judge called that one of many examples that the state and county “failed to adequately clarify.” “Lasertron has demonstrated that the (government) decisions were haphazard and devoid of logic,” Colaiacovo wrote.
Lasertron, which filed the legal action in October, voluntarily closed its doors in November when the state designated most of Erie County as a more restrictive “orange zone.” 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” last spring that shuttered all nonessential businesses.
Lasertron intends to re-open when Western New York emerges from the orange-zone restrictions and is back in Phase 4 of the state’s re-opening process, said J. Michael Lennon, an attorney who represented Lasertron in the court case. “The folks at Laserton feel vindicated in their effort to reopen safely,” Lennon said.
The order to close came as a surprise, given the county’s Sept. 18 health inspection that showed the center to be in compliance with safety protocols. “The inspector performed a complete walk-through of the facility and processes that take place between sessions and wrote a glowing inspection report,” James Kessler, founder and CEO of Lasertron, said in a court affidavit. The judge noted that the Health Department conceded that it was unaware of any Covid-19 cases traced back to Lasertron.
Lastertron, in its court papers, told the judge that laser-tag is classified by the North American Industry Classification System with paintball, and is listed as a moderate-risk sport under existing Covid-19 guidelines. Players at the center use infrared-emitting light guns to tag designated targets. After the inspection, the Department of Health informed Lasertron that it had reclassified the center as a “place of public amusement” and, in accordance with the state’s re-opening guidelines for that classification, directed it to cease operations. The Health Department had contacted Empire State Development for clarification about its classification.
“Without any explanation, ESDC determined that Lasertron should be treated the same as trampoline parks as opposed to its long-standing classification with other similar recreational activities,” Colaiacovo wrote. “The court finds the cavalier process adopted by the state when it reclassified Lasertron is nothing short of arbitrary and capricious,” the judge ruled.
“Our department is aware of the ruling and will be working with our county attorney and Department of Law to prepare for the next court appearance in February,” said Kara Kane, a spokesperson for the Erie County Health Department. “As this is a pending legal matter we do not have any other comments at this time.”
State officials could not be reached for comment.
By Patrick Lakamp, The Buffalo News | January 4, 2021