Struggling eatertainment chain Dave & Buster’s filed a lawsuit against New York Gov. Andrew Cuomo, calling his decision to close the state’s arcades amid the pandemic “arbitrary and unconstitutional.”
The suit, filed earlier this month in U.S. District Court for the Northern District of New York, said that similar businesses, such as casinos and bowling alleys have been allowed to stay open, while Dave & Buster’s has been closed and has had to furlough nearly 1,200 employees and has had the “long-term economic viability” of its 11 food-and-games units across the state threatened.
However, on Wednesday, Cuomo announced that "indoor family entertainment centers and places of amusement" could reopen at 25% capacity starting March 26. Face coverings and social distancing are required for all customers and staff. And all customers must have health screenings and temperature checks before entering.
"In New York, we base our decisions on the science and data and adjust as the virus adjusts," Cuomo said in a statement. "With continued decreases in the infection and hospitalization rates, we have been able to take steps toward beginning our post-COVID recovery and we are excited to now be in a place where we can bring back our recreational industries with safety protocols in place."
Dave & Buster’s has previously said that its 30 locations in California and New York make up a quarter of the chain’s sales.
In its suit, Dave & Buster’s notes that it is “open and safely operating” in nearly all of the other states in which it does business, using modified store layouts, frequent surface cleanings, hand sanitizer stations, mandated mask-wearing and more.
Cuomo shut down all “places of amusement” in the state on March 19, while reopening certain “low-risk indoor arts and entertainment” venues on June 26 in some parts of the state, the lawsuit states. Bowling alleys and gyms were allowed to open in August, followed by casinos the next month. In October, movie theaters were permitted to reopen at reduced capacity.
“Defendant has never publicly explained how arcades are meaningfully different from casinos, video lottery gaming facilities, bowling alleys, movie theaters, film houses, museums, aquariums, art galleries, gyms and fitness centers in the context of COVID-19,” Dave & Buster’s said in the suit.
Last month, Dave & Buster’s reported that its same-store sales were down 75% for the first nine weeks of Q4, largely because it only had about 65% of its total locations open.
In its suit, Dave & Buster’s is seeking a permanent injunction to keep Gov. Cuomo from closing arcades while business such as casinos and bowling alleys are allowed to stay open, as well as a declaratory judgment that closing Dave & Buster’s locations in New York violates the freedom of speech as protected by the constitution. Dave & Buster’s is also seeking court costs and attorney’s fees.
This story has been updated with information about Cuomo's announcement.