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Updated: Restaurants fight governor’s ban

Turtle Mountain Brewing Co. owner Nico Ortiz, center, in the blue mask, stands at the corner of his restaurant with his employees, showing signs saying “#LetUsServe.” Amy Byres photo.

RIO RANCHO, N.M. — In a matter of hours Monday, a district court judge allowed restaurants and breweries to reopen indoor service and then the New Mexico Supreme Court disallowed the reopening.

On July 13, the New Mexico Restaurant Association and several New Mexico businesses filed a lawsuit against the governor’s ban on indoor dining at restaurants and indoor seating at breweries.

District Court Judge Raymond Romero found the July 13 health order to cause immediate irreparable injury to businesses resulting in “permanent loss of revenue, permanent business closure and/or bankruptcy,” according to a 10-day injunction granted in the Fifth Judicial District Court in Eddy County.

Restaurants and breweries would have been able to reopen indoor dining and seating at 50 percent capacity, according to the 21-paged injunction.

Gov. Michelle Lujan Grisham’s administration filed an emergency motion with the state Supreme Court.

The state Supreme Court granted an emergency stay of the district court decision a few hours later, meaning there could be no more indoor service. The Supreme Court ordered the parties to file their arguments with the high court within the next week.

NMRA’s attorney Antonia Roybal-Mack would like the stay to be lifted and for restaurants to follow guidelines set in the June 30 public-health order and open indoor service at 50 percent capacity.

On Tuesday night, “we filed a motion to lift the stay based on the grounds that the governor’s office did not follow the rules required for the Supreme Court to issue a stay,” Roybal-Mack said.

Until an evidentiary hearing can be held, she would like restaurants to resume indoor service.

“Let us put on our evidentiary hearing and let the governor’s office prove their statistics as to why restaurants are the reported cause of the spread of COVID-19 in New Mexico,” Roybal-Mack said.

She has also said restaurants aren’t causing COVID-19 spread.

Lujan Grisham’s administration disagreed.

“Sustained indoor contact in an environment where face-coverings cannot be worn, such as at restaurants, is unsafe,” said Tripp Stelnicki, spokesman for Lujan Grisham’s office. “A bad ruling by a judge doesn’t change that. New Mexico business operators should continue to abide by the state’s guidelines and restrictions; anything less is to risk the health and safety of employees, customers, their communities and indeed our entire state.”

There have been about 18,000 COVID-19 cases in New Mexico, with about 7,000 recoveries and about 600 deaths, according to the New Mexico Department of Health.

“The danger of COVID-19 transmission has risen and continues to rise — increased cases, as we have seen, led to increased hospitalizations and subsequently more COVID-related deaths. New Mexico cannot afford to let up in its fight against this virus,” Stelnicki said.

“The administration had been working great with the association and continues to serve restaurants and breweries and employees all across the state. Then the association sued us. Now it plays out in the courts. It’s unfortunate but that’s the path they chose,” Stelnicki said. “The next steps will take place there.”

CEO of NMRA Carol Wight said the governor’s administration made numerous appearances on webinars and Zoom meetings to clarify the COVID-safe practices and what was being allowed and what was not.

Wight said the NMRA was never told there would be another shutdown.

“We were never asked if we thought there was something else we could do in order to avoid being shut down,” she said.

The governor’s office has not been working with the restaurant industry, Wight said.

“Just because they make a couple of calls to my members does not mean the governor is talking to the industry, and that is not right,” Wight said. “They are not talking to me. I represent this industry; nobody else in the state represents the industry.”

Wight said the NMRA is asking to talk with Lujan Grisham or her office, lawsuit or not. She would like to see if an agreement can be made or if they can negotiate something to help local restaurants and breweries.

Click the links below to read court documents.

10-day injunction

Emergency petition

Motion to lift stay of TRO