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Michigan Restaurant Association Denied Request for Temporary Restraining Order on Indoor Dining Ban

In his opinion, Judge Paul Maloney points out that unlike in retail stores where masks may be worn at all times, diners must take masks off to eat and drink

Gray circular booths inside Prime and Proper.
The owner of Prime and Proper and Townhouse in Detroit is a plaintiff in the lawsuit.
Gerard + Belevender

On Friday, November 20, a U.S. District Court judge denied the Michigan Restaurant and Lodging Association’s (MRLA) request for a temporary restraining order on state Department of Health and Human Service’s three-week indoor dining closure.

Representatives for the MRLA in collaboration with the owner of metro Detroit’s Heirloom Hospitality Group and hospitality group Suburban Inns filed a lawsuit against the director Robert Gordon of the Michigan Department of Health and Human Services (MDHHS). The plaintiffs claim that an epidemic order that took effect on Wednesday, November 18, in response to a surge in COVID-19 cases is a violation of business owners’ constitutional rights and unfairly targets restaurants.

Gordon has maintained that the temporary restrictions on indoor dining are completely legal and necessary — mirroring measures implemented by countries in Western Europe and other states in the U.S. to slow the spread of novel coronavirus.

Judge Paul Maloney’s opinion, in part, stated that there did not appear to be enough evidence to support that a claim that the epidemic order violates the interstate commerce clause of the constitution. Maloney also rejected the the plaintiffs’ attempts to project the economic fallout of the three-week indoor dining ban, stating that the earlier state-wide shutdown can’t be directly compared to this current, more limited shutdown.

One of the MRLA’s core arguments, that restaurants were being unfairly targeted, while businesses like hair salons and retail stores were permitted to remain open, also didn’t seem to land with the judge who disagreed that visiting a restaurant or bar was equivalent to visiting a store or the gym. Maloney writes in his opinion:

Individuals who patronize the businesses that remain open can do so—and must do so— while wearing a face covering. Even those individuals exercising indoors at a gym must wear a face covering (group exercise classes are prohibited). In contrast, individuals cannot eat or drink while wearing a mask. Indeed, one of the exceptions for face coverings contained in the [Epidemic Order] is for eating and drinking , which might occur at one of the limited food service establishments that remain open.

Maloney concludes that, “restaurants and bars are not similarly situated to the business that are allowed to remain open.”

The legal fight isn’t over yet. Gordon must provide a response to the claim by 9 a.m. on Tuesday, November 24, while the MRLA must respond by noon on Wednesday, November 25. The judge has scheduled a hearing in the case for Monday, November 30, immediately after the Thanksgiving holiday.

MRLA president and CEO Justin Winslow responded to the judge’s refusal to grant a temporary restraining order in a statement:

“We were disappointed not to have received a temporary restraining order of the DHHS Order this morning, as it means several more restaurant workers will be losing their jobs in the coming days as restaurants remain closed. We look forward to the opportunity to make our case in court on November 30 and remain hopeful for a positive outcome that more effectively balances risk and human toll across Michigan.”

In a statement released on Friday afternoon, Gordon welcomed the court’s decision. “We appreciate today’s ruling,” he says. Orders similar to this one have successfully stopped COVID surges in many other countries. That’s why public health experts support the approach, and we believe these targeted and temporary steps are needed to avoid overwhelmed hospitals and death counts like we saw in the spring. If all of us mask up and avoid indoor gatherings, we will not only save thousands of lives and protect our frontline health workers, but we’ll also be able to enjoy indoor restaurant dining without fear.”

While some restaurant owners locally have expressed understanding for the current MDHHS order, there’s a sense of growing frustration amongst people in the industry that they’re disproportionately burdened by closures and layoffs. Some were also surprised to learn on Tuesday, November 17, that their outdoor heated seating areas would not comply with the order. At the same time, Congress continues to be deadlocked over a second bailout and time is running out before the CARES Act expires.

Judge Maloney's Opinion November 20, 2020

Update: 3:43 p.m., November 20: This story has been updated with an additional statement from Robert Gordon.

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