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Judge denies restaurants' request to quash latest indoor dining ban

Riley Beggin
The Detroit News

A Grand Rapids federal judge denied Friday a restaurant advocacy group's request to immediately stop the Whitmer administration's ban on indoor dining. 

The Michigan Restaurant & Lodging Association and a Metro Detroit restaurant chain sued state health director Robert Gordon earlier this week, asking the court to halt the ban that went into effect on Wednesday. The same order also shuttered high school and college classrooms, indoor bars, movie theaters, group fitness classes, bowling alleys and casinos.

The order will last three weeks and expire Dec. 9, but restaurants and critics fear the order will be extended into the New Year. 

In their filing in Michigan's Western District, the restaurant association argued that the Whitmer administration's order violated businesses' right to equal protection under the law, their right to due process, the clause of the U.S. Constitution that only allows Congress to regulate interstate commerce, and the separation of powers.

Bar manager Jen Rigley, left, and cook Amber Parent, clean up the kitchen at PJ's Lager House, in Detroit, November 16, 2020.  The bar is closing indefinitely due to new restrictions on indoor dining because of the increase in COVID-19 cases in the state. The Michigan Department of Health and Human Services on Sunday put another hold on indoor dining at bars and restaurants, and also ordered movie theaters, casinos and bowling alleys to close Wednesday through December 8.

Judge Paul Maloney, who was appointed by Republican President George W. Bush, ruled Friday that the business group is unlikely to succeed in their claims and denied its request for a temporary restraining order. But the judge scheduled a hearing that will take place later this month.

"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," Michigan Restaurant & Lodging Association President Justin Winslow said in a Friday statement.  

"We look forward to the opportunity to make our case in court on Nov. 30 and remain hopeful for a positive outcome that more effectively balances risk and human toll across Michigan."

State officials "appreciate" the judge's decision since the measures will make it possible to enjoy eating at restaurants "without fear" possible in the future, Gordon said in a Friday statement.

"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," he said. 

Two other companies, Heirloom Hospitality Group and Suburban Inns, joined the restaurant group in the suit against the state.

Jeremy Sassoon, president of Heirloom Hospitality Group, said earlier this week that the ban is "discretionary" and that the restaurant industry is being treated as a "scapegoat." Restaurant industry representatives have argued that relatively few coronavirus outbreaks are associated with restaurants, with recent data showing about 4.4% of outbreaks statewide connected to the industry.

Winslow said many members expect the ban will last longer than three weeks and are preparing for at least six to eight weeks of being shut down. He estimated around 40% of restaurants would close, some temporarily, if the ban remains in place.

Whitmer's administration issued the order as cases are spiking statewide. They argued that restaurants provide an opportunity for people, sometimes from different households, to congregate indoors and take their masks off while eating. 

"We are in the worst moment of this pandemic to date," Whitmer said Sunday when announcing the measures. "The situation has never been more dire. We are at the precipice, and we need to take some action."

More than 311,000 people in Michigan have been sickened with COVID-19 and nearly 9,000 have died from it since the pandemic began in March. Daily cases have been rising quickly since mid-October and hospitalizations have topped those from the first wave of the pandemic in April. 

rbeggin@detroitnews.com

Twitter: @rbeggin