Genesee Speedway is joining several other racetracks who are suing Gov. Andrew Cuomo and Attorney General Letitia James over their efforts to prevent them from having fans at races. 

Jim Johnson owns Johnson Automotive in Batavia and is also the promoter at the Genesee Speedway.

The track usually hosts hundreds of fans on a Saturday night, but right now they are not holding any events, as their website puts it, “due to governor's regulation."

"The race track has been able to attain enough income through just operating the essential employees and essential workers in the back gate to cover all of the expenses. My business has been subsidizing that business," said Johnson.

Johnson explained that he held races on July 4th and 9th with fans in the grand stands against the state's recommendations.

After that the state revoked his liquor license and sent Johnson a cease and desist.

"It was time to go sue the state." Johnson said.

In their lawsuit against the state, Johnson says the tracks are using a ruling from U.S. District Judge Gary Sharp who ordered New York officials to not enforce outdoor gathering limits unless social distancing guidelines are not being followed.

He added the state disagreed, arguing the ruling only applied to religious gatherings. 

"How can you pick and choose the winners and losers in this state? It's unconstitutional, and that's what we are looking for. We are hoping that the federal judge looks at our lawsuit as all of the residents in the state of New York need to be treated equally," argued Johnson.

Johnson also believes it would not be difficult to limit attendance and social distance properly at the speedway. 

"As long as people that are running those venues are making sure that social distancing is occurring and are masked…I don't think that number goes anywhere. I think we would be fine, going in and running all of our venues," Johnson said.

Johnson expects the judge to rule soon, however, the speedway intends to host a few more races before the season ends with or without fans, depending on the ruling.