Nearly 40 local restaurants are suing New York State.

They say the state violated their constitutional rights by restricting dining under pandemic mandates. 

In court documents, the restaurants behind the suit say it was a gross abuse of power, adding that there wasn't any scientific proof that the restrictions would prevent the spread of COVID-19.

They say if they are able to reopen for indoor dining it could save lost revenue and even prevent some of the establishments from closing. 

Don Benoit owns Prescott's Provisions in the city of Tonawanda and he's part of the suit. 

"I just don't think what's going on is fair," Benoit said.

Since the restaurant is in the orange zone, it can't have indoor dining but can offer takeout or delivery and provide outdoor service. After consulting with the county, the owner decided to use his restaurant's front patio and open the windows there to offer dining. But the State Liquor Authority recently paid a visit, decided it wasn't suitable, and suspended their liquor license. 

"If they're not accepting what they thought was OK for patio dining with fresh air and air exchange, then you know very well that they took away the liquor license because they know they can't shut me down, all they can do is make it difficult for me," he said.

This is the latest hurdle for small businesses like his that have struggled to keep afloat throughout the pandemic. Benoit wonders why the big box stores like Target and Walmart aren't facing the same restrictions. 

"They want to say it's all about the pandemic, it's not. The pandemic is there, it's real, I don't question that. I don't question the health of people. I do question the way our government is handling it," he said.

Corey Hogan, the owner of HoganWillig, filed the lawsuit Thursday on behalf of the restaurants.

He said, "You don't have a right to close a business down unless you can show that they're part of the problem." 

The lawsuit pushes for these establishments to have indoor dining once again and claims the longer they're barred from doing so the more dire the outcomes.

"The damage will be irreparable, they're going to go out of business at some point you can't resuscitate them and bring them back," Hogan said.

What's also frustrating for Benoit is seeing businesses across the canal in North Tonawanda have less stringent restrictions since they're in a different micro-cluster zone. He hopes local and state leaders hear his message. 

Benoit said, "I want them to give us the benefit of the doubt, give us all the fact that we are smart, we're all willing to do what we have to do to help our neighbor but we also know when things step over the line." 

The state did not immediately return a request for comment.