Restraining order issued for dining restrictions in Anne Arundel

An Anne Arundel Circuit Court judge has granted a temporary restraining order barring the county from implementing an executive order that would have prohibited indoor and outdoor dining.

The order from Judge William Mulford came hours before the restrictions imposed by County Executive Steuart Pittman were to take effect even after the first-term Democrat attempted to revise them to allow outdoor seating.

Mulford, in his order, said the restaurant owners demonstrated “immediate and irreparable injury” should Pittman’s order be allowed to take effect.

Mulford wrote that Pittman’s order was “applied in an inconsistent manner. The county executive appears to have relied on a selective interpretation of the data relating to COVID-19 matters that ignores or minimizes other sources of COVID-19 contact and has not clearly explained the overall hospital capacity in Anne Arundel County as it relates to COVID exposure. It is clear based on pleadings and affidavits and exhibits that the restrictions on plaintiffs’ businesses were applied in an inconsistent manner from other businesses that contribute significantly to COVID contact sources. In other words, there appears at this stage to be an arbitrary and capricious applications of restrictions on plaintiffs’ businesses when compared to other business activities.”

Mulford’s decision came less than a day after four restaurant owners — Titan Hospitality, Heroes Pub, Capo LLC and Severna Park Rib Company — filed suit in Anne Arundel County Circuit Court seeking an injunction against Pittman’s order closing restaurants.

Mulford cited not just the irreparable harm that would be done to restaurant owners and employees — whom he said would lose the opportunity to make money during one of their busiest times of the year — but also to suppliers and related businesses, as well as property owners and investors.

“These costs are not purely financial to all these parties. There is no request here for monetary damages. The request is to work, to live, to provide a service to others, and to survive as citizens in a society in an occupation of one’s choice.”

Mulford went on to compare Pittman’s order to that of Gov. Larry Hogan, writing “the public interest favors keeping the restaurants and this vital industry open under the state of Maryland’s not unreasonable restrictions rather than closed down or restricted” under Pittman’s executive order.

The Anne Arundel County judge’s order raises questions about legal challenges to restrictions in other jurisdictions.

“This is exactly what we predicted on Monday. The Anne Arundel County restriction on restaurants, just like Baltimore’s, was a lawsuit waiting to happen,” said Thiru Vignarajah, a former deputy attorney general and candidate for Baltimore mayor. “The law requires cities and counties to be rational and consistent, to follow science and common sense. You can’t keep big casinos and gyms open but shut down small businesses and restaurants. It makes no sense that I can play poker and blackjack and run on a treadmill next to dozens of strangers indoors but can’t have dinner with family and friends at a socially-distanced table outdoors. That is arbitrary and capricious. I hope Baltimore City reconsiders and revises its policy before it is forced to by a judge.”

Pittman, in a statement, expressed disappointment in the decision.

“We believe the science from public health experts is clear and it shows that taking actions to limit situations where people gather without masks will prevent the spread of this virus and ultimately save lives,” Pittman said in a statement. “We look forward to a full hearing on the merits of the case and in the meantime are discussing other options to protect the health of our residents by limiting community spread and flattening the ongoing COVID surge in our county.”

Pittman last week initially issued an order that would have prohibited all indoor and outdoor restaurant seating and allowed only carryout and delivery. That order was to take effect Wednesday at 5 p.m.

Baltimore City Mayor Brandon Scott similarly restricted restaurant operations to carryout and delivery last week. That order went into effect on Friday.

As a result of Mulford’s order, restaurants will continue to be allowed a 25% indoor seating capacity consistent with state and county orders. A spokesman for Pittman said updated restrictions on outdoor dining will go into effect as planned.

A hearing on the preliminary injunction is scheduled for Dec. 28.

County leaders under state law can impose tougher restrictions than those imposed by the governor but cannot be less restrictive.

In both cases, leaders in the city and Anne Arundel County expressed concerns about the transmission of the virus that could occur indoors where diners are not masked as they eat and drink.

Contact tracing has suggested the biggest risk of spread comes from indoor gatherings in private homes though restaurants and bars are also of some concern. Those contact tracing efforts are incomplete. Hogan, in an earlier news conference acknowledged that the state is seeing only a 50% response rate as many refuse to speak to contact tracers.

Similar lawsuits have proved difficult in the past because courts have allowed wider discretion to executives during a state of emergency or public health crisis.

Some challenges have been successful when there were assertions that an organization was treated differently than others, as is the case in a number of states where religious groups successfully sued because they were ordered to close or limit capacities while retail and other secular establishments did not face similar restrictions.

In November, U.S. District Judge Catherine C. Blake dismissed a lawsuit in which business owners, clergy and three Republican state delegates argued that Hogan’s orders violated their constitutional rights to assemble in large groups and hold religious services as they deem appropriate.

Blake cited a 1905 Supreme Court ruling that has long affirmed the right of governments to “protect itself against an epidemic disease” during a public health emergency.

Blake, in her order, wrote that the 1905 ruling “holds that it is not the role of the judiciary to second-guess policy choices favoring one reasonable method of preventing the spread of a disease over another, which is precisely what the plaintiffs request this court to do.”

Her ruling made permanent her denial in May of the plaintiff’s request for a temporary restraining order against the governor’s executive orders.

Titan Hospitality, which includes the Blackwall Hitch restaurants in Annapolis and Gambrills and Smashing Grapes in Annapolis and Crofton, is owned by James King, a former state delegate.

King, in a statement Wednesday, announced that the order in Anne Arundel County had forced him to temporarily cease operations including carryout on Tuesday night. Following Mulford’s decision, King said his restaurant would re-open.

“This action by Judge Mulford will allow restaurants to continue to employee their dedicated staff members, serve the general public and make Christmas a little brighter for thousands of county residents,” King wrote. “We are extremely grateful to Judge Mulford and all those that joined together to fight this battle. We will be re-opening our Smashing Grapes Annapolis and Blackwall Hitch Annapolis locations for lunch at Noon tomorrow and will remain open until further government restrictions are placed upon us.”

Pittman, on the same day as the hearing and hours before his order was to take effect, revised the prohibition to allow outdoor dining as long as at least half of the walls of the structure were open to allow airflow.

“The revisions announced today resulted from the input we received from business and community stakeholders,” said Pittman, in a statement. “Hospitalization projections and the impact of our actions on those numbers are the primary drivers of our policies, but we must also do everything in our power to assist the county residents who have suffered most throughout this pandemic – our low wage workers.”