Four Anne Arundel County restaurateurs are withdrawing a lawsuit against County Executive Steuart Pittman after both sides reached an agreement on ending a prohibition on indoor dining in that county.
The settlement came after two days of hearings to continue an injunction against Pittman’s executive order and signals that both sides were motivated by the potential for losing the hearing before Anne Arundel Circuit Court Judge William C Mulford II.
“It was certainly unclear as to which way the judge was going to rule,” said Anne Arundel County Attorney Gregory Swain, who represented Pittman and the county. “We obviously felt strongly about our case.”
Mulford’s decision to issue a ruling left the door open to a series of late night and early morning conversations between Swain and Ed Hartman, the attorney for the plaintiffs, that led to an agreement to move back to a 25% indoor seating capacity and withdraw the request for a temporary restraining order.
“Certainly it’s a big ask to ask a judge to overturn something that a county executive does, and I agree that Judge Mulford was struggling with the concept of doing that,” said Hartman.
“There needs to be the ability to have a judge check on it and restrain it if necessary, but I could tell that Judge Mulford was struggling with it — appropriately so, it should not be something that is easy to do — and there was the absolute possibility that Judge Mulford would have denied my request,” he said.
Hartman asked Mulford to stop the order not on constitutional grounds, as in other cases, but instead because Pittman was bound by standards set by the Anne Arundel County Council when it authorized him to take emergency actions that were imminently necessary to protect lives.
“What we were asking for was a restoration of 25% capacity for indoor dining, and if we can get that without asking who won the war, I think the parties will get along better going forward,” said Hartman. “Getting everything we needed was more important.”
The agreement allows both sides to avoid a potentially adverse ruling that could have closed restaurants or handcuffed Pittman and the county as he manages slowing the spread of the virus if infections and hospitalizations increase.
Under the agreement, restaurants will be allowed to continue with 25% indoor seating — which they had been asking for — but will have to adopt additional contact tracing measures.
“I believe we demonstrated to the court that the county’s decision was based on our strong desire to save lives and protect public health and was neither arbitrary nor capricious,” Pittman said. “However, the prospect of a sudden and disruptive closure of indoor dining prompted me to evaluate the best course of action at this time.”
Pittman opened the door to a potential settlement on Tuesday afternoon during testimony when he said that he might consider lifting the ban even if the county was successful in opposing the temporary restraining order issued by Mulford on Dec. 16. But during that testimony, Pittman expressed concerns about how continuing Mulford’s order might open the doors to other groups challenging his executive orders.
“Since December 10 when I announced the four week suspension of indoor dining, much has changed,” Pittman said in a statement. “Catastrophic hospitalization projections, rising case rates, rising death rates, and restrictions put in effect by the state and the county have altered public behavior. Case rates have dropped slightly and hospitalization projections have been adjusted downward. We still expect a challenging surge in COVID hospitalizations and a post-holiday case rate increase, but the improved forecast allows us to maintain our current level of restrictions.”
Previous legal challenges by restaurants against pandemic restrictions in other Maryland jurisdictions have been rebuffed.
Both Hartman and Pittman said in separate interviews that they believed the settlement of the case opened the door to future discussions when the county is either able to begin lifting restrictions or, if a surge occurs, has to impose tougher restrictions.
“Probably both will happen,” said Hartman. “There will probably be times when it gets worse and there will certainly be times when it gets better and action will have to be taken by the county executive. We would like him to do that in conjunction with restaurateurs who are directly affected. That would be a positive development from this and I think it will happen.”