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Restaurants sue to overturn Michigan's indoor dining ban

Michigan restaurants and hospitality groups have sued in federal court against the state of Michigan for a Sunday order shuttering indoor dining at restaurants and bars for the next three weeks to curb COVID-19 infections. 

The lawsuit filed Tuesday in Michigan's Western District contends the Whitmer administration violated the businesses' right to equal protection under the law, the right to due process and the commerce clause reserving interstate and foreign commerce regulation to Congress. 

For subscribers:Metro Detroit restaurants pivot as dining rooms close again

The suit also argued the state Department of Health and Human Services' order violates the state Constitution's separation of powers and non-delegation clauses. It asked the court to deem the order an "unconstitutional taking" under the U.S. and state constitutions. 

"Plaintiffs have shown themselves highly capable of following the comprehensive protocols that have been in place for several months, and there is no reason in-person dining should be entirely prohibited now, especially while the Nov. 15 order permits other businesses to have clientele indoors and on premises," the lawsuit said. 

"For example," the filing said, "under the Nov. 15 order, it is legal to get a tattoo and haircut but not to eat a meal indoors at a restaurant."

The entrance to the Prime and Proper restaurant in Detroit. The owner of the restaurant joined Michigan's restaurant association in suing the state of Michigan to overturn an order barring indoor dining.

The suit asks for a preliminary and permanent injunction that would allow restaurants to continue indoor dining while complying with health and safety protocols. 

The suit was filed by the Michigan Restaurant and Lodging Association, Detroit-based Heirloom Hospitality Group, LLC and Hudsonville-based Suburban Inns. 

Heirloom owns and operates three Detroit-area restaurants, including Townhouse Birmingham, Townhouse Detroit and Prime and Proper. 

"While Heirloom survived the first shutdown by providing contactless delivery, prepared meals and meal kits for months, it will be economically gutted and may not survive a second shutdown," the lawsuit said. 

Heirloom Hospitality President Jeremy Sasson said Tuesday that Michigan’s ban on indoor dining is “very discretionary.” 

“Saying this particular industry needs to close while this one doesn’t … goes to show that there is really no rhyme or reason to why things are being singled out the way they are,” Sasson said. “We clearly seem to be the scapegoat here.” 

“I speak on behalf of many in the industry: Enough is enough,” he said. “You know we have fought and grinded through extensive restrictions thus far, managed to do the best we can thus far.

"Now, when there is no parachute, there is no support system, there’s no added protections to our employees and to small businesses like us … we are now being asked to lay down and play dead for as long as it may need to be.”

Sasson said he joined the lawsuit in part to pick up the legal fight for his employees. Before the pandemic, Heirloom had 350 employees, which  dipped to 280 throughout the past eight months. Today, Sasson said he has seven people on payroll. 

“I don’t have answers for them as to how they’re going to feed their families, how they’re going to support themselves and pay their bills,” he said. 

The lawsuit was filed "as the last available option" to stop an order that goes into effect Wednesday that would devastate the restaurant industry and its employees, said Justin Winslow, president and CEO for the Michigan Restaurant and Lodging Association. The association estimated about 40% of restaurants will close, some temporarily, if the indoor dining ban goes into effect. 

"A lot of people believe this is going to be substantially longer than three weeks," Winslow said. "Six to eight is what they’re preparing for, maybe longer.”

The association made "good faith efforts" to work with the state health department to mitigate risk and remain open, including reducing capacity to 25% and putting in place a 10 p.m. curfew , he said. 

The restaurant industry has argued in recent months that comparatively few COVID-19 outbreaks can be traced back to restaurants. In recent data, restaurants accounted for 4.3% of total outbreaks statewide.  

"I think we all need to be in this together," Winslow said. "...But this industry can’t continue to be scapegoated in a way that is not supported by the data."

The Western District of Michigan has five judges, all of whom were appointed by Republican presidents. 

The lawsuit is at least the fourth to challenge the new epidemic orders issued by the Michigan Department of Health and Human Services.

Two suits filed by Christian schools and one by a West Michigan chiropractor have not yet seen success in court. 

Heirloom Hospitality Group LLC, which owns the Townhouse Detroit restaurant and two other eateries, said it joined a federal lawsuit against Michigan's ban on indoor dining because it "will be economically gutted and may not survive a second shutdown."

The state health department began issuing epidemic orders in October after the Michigan Supreme Court overturned a key law underpinning Gov. Gretchen Whitmer's emergency authority and overturning her executive orders issued past April 30.

Michigan's high court considered the case after Western District U.S. District Judge Paul Maloney asked the justices to clarify the state law underpinning Whitmer's powers. Maloney, an appointee of Republican former President George W. Bush, has been assigned the two challenges brought by Christian schools against the epidemic orders.

When Whitmer's emergency powers were overturned in October, the justices expressed hope that the governor and Legislature would work together to address COVID-19 spread, the lawsuit said. Instead, the governor turned to the Department of Health and Human Services to "circumvent" the decision, according to the lawsuit. 

Using the state health department  to issue orders is "an impermissible delegation of legislative authority" under a law that has "vague parameters" regarding the reach of the department's authority.

"Plaintiffs' businesses have already lost hundreds of millions of dollars in business opportunities as a result of the governor's invalid executive orders and now are singled out form other non-essential businesses and suffering additional devastating losses under the Nov. 15 order," the lawsuit said. 

Heirloom Hospitality's Sasson, like other restaurant owners, expects the ban on indoor dining in Michigan to extend beyond Dec. 8 because of the holidays and New Year's Eve. 

The problem for Heirloom is there’s not enough carryout business in downtown Detroit to support his two restaurants there, he said. 

“I’m in the experience and entertainment business, not just the food business," Sasson said, "so when I sell an experience, it’s hard for me to package that up and put it in a to-go box and expect you to enjoy the value without killing my brand."

eleblanc@detroitnews.com