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Pittman defends indoor dining ban but says it may be rescinded

Anne Arundel County Executive Steuart Pittman, shown in 2018, has announced new restrictions to limit the spread of COVID-19. (AP Photo/Brian Witte)

Anne Arundel County Executive Steuart Pittman, shown in 2018. His decision to ban indoor dining has led to a legal challenge from some county restaurants. (AP Photo/Brian Witte)

ANNAPOLIS — Calling a ban on indoor dining one of the most difficult decisions in his two years as Anne Arundel County Executive, Steuart Pittman told a circuit court judge that he may consider rescinding the controversial though temporary ban.

The temporary restraining order remains in place as Anne Arundel Circuit Court Judge William C. Mulford II considers an extension in an order that is expected on Wednesday. Pittman’s comments came after two days of testimony and a dispute over whether Pittman’s order should be allowed to stand and what effect it has — or would have — on coronavirus infections and deaths in the county of roughly 580,000 people.

“I did not want to take the actions. I think it one of the most difficult things I’ve done as county executive, to sign that order,” said Pittman, adding that declining projections of hospitalizations could leave the door open to ending an indoor dining ban that is scheduled to end in mid-January if Mulford does not continue his restraining order.

Pittman imposed the order in December, leaving about a week for restaurants to sell food already ordered and prepare to move to a carryout and delivery models. The move came after public health officials, including Anne Arundel County Health Officer Dr. Nilesh Kalyanaraman and leaders of two hospitals in the county and experts at Johns Hopkins, warned of increased deaths and an overwhelmed health care system.

If nothing was done, they told Pittman , hospitals around the state  may be forced to care for more than 10,000 coronavirus patients in a system with roughly 8,000 staffed beds.

“I was looking at the numbers and that, quite frankly, alarmed me,” said Pittman.

Pittman and others said the order was necessary because of concerns about transmission of the virus in restaurants. Indoor dining is about the only exemption to mask wearing and puts people in close proximity, all inherently risky for virus transmission, they said.

Four Anne Arundel County restaurant owners  — Titan Hospitality, Heroes Pub, Capo LLC and Severna Park Rib Company — filed suit last week in Anne Arundel County Circuit Court seeking an injunction against Pittman’s order closing restaurants.

Mulford issued the temporary restraining order on Dec. 16, just hours before Pittman’s prohibitions were to take effect. The judge at the time 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, he wrote.

“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.”

Pittman, testifying remotely by video, took issue with the wording in Mulford’s order.

“We have not been arbitrary in the decision and we certainly have not been capricious,” Pittman said in an exchange with Mulford.

Pittman added that a continuation of the restraining order could imperil his ability to manage the pandemic with other actions.

“It’s important that that not be the conclusion of this court,” said Pittman.

Mulford seemed torn Tuesday as he questioned attorneys about the standards on which the case should be decided and testimony he had heard. In particular, the judge seemed to place a heavy weight on projections issued by Johns Hopkins that forecast more than 10,000 coronavirus patients in hospitals statewide assuming that no actions were taken.

Pittman in November reduced indoor capacity for dining to 25% — the state capacity is 50% — and later imposed a ban on indoor dining and required masks in gyms as well as other actions.

Since those actions as well as similar bans in Baltimore City, Prince George’s and Montgomery Counties were announced, the dire projections have been revised down to 4,000 coronavirus patients by late January or early February. Mulford interpreted the testimony as a reliance on inaccurate data.

“If there is a reliance on information and the information is wrong, how can the court ignore that?” Mulford asked. The judge later questioned Ed Hartman, an attorney for the restaurants, why he shouldn’t use the rational basis standard used in other similar cases, including similar but unsuccessful attempts to thwart restaurant restrictions in Baltimore city, and Montgomery and Prince George’s counties.

County Attorney Gregory Swain told Mulford the information was the best advice from experts at the time that decisions were made. The standard, he said, was that there was a rational basis for the actions related to the science — a standard found in 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.

“It’s been universally applied across the country in these (coronavirus-related) cases,” said Swain, adding that the standard did not allow for the courts to substitute its judgment for the executive’s.

In a ruling last week, Baltimore City Circuit Court Judge Lawrence Fletcher-Hill wrote that the court would not second-guess Mayor Brandon Scott.

“Both the balance of harm and the public interest also weigh very strongly in favor of (the) defendant here,” Fletcher-Hill wrote. “Although the restaurant industry bears a disproportionate burden in this public health crisis, the mayor is acting in the public interest to prevent illness and even death that will result from increased transmission of the virus. That risk and the need to decrease it through these means outweighs the harm suffered by plaintiffs and presents a powerful public interest in upholding these specific restrictions in the mayor’s executive order.”

Hartman told Mulford that the standard, which Pittman had not met, was not just a reasonable action but also that it was imminently necessary to save lives in the county.

 

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