Copyright © 2020 Albuquerque Journal
SANTA FE – New Mexico’s ban on indoor restaurant dining was put on ice for a few hours Monday, only to be reinstated by the state Supreme Court later in the day.
The New Mexico Restaurant Association, along with several restaurants around the state, had filed a lawsuit last week seeking to block Gov. Michelle Lujan Grisham’s administration from enforcing its reimposed ban on indoor dining at eateries and breweries.
A state judge in Carlsbad issued an order Monday morning that temporarily prevented enforcement of the ban, paving the way for restaurants statewide to reopen indoor dining spaces at 50% capacity.
At least some eateries quickly did so, but the reprieve was short-lived as the Supreme Court allowed the dine-in ban to be reimposed after the Governor’s Office filed an emergency petition.
The state’s highest court also ordered that both sides file responses in the case by next week.
“I am grateful for the court’s quick action,” Lujan Grisham said in a statement. “Businesses all across New Mexico have been battered by the effects of this pandemic; they are owed consistency and fairness, which my administration has endeavored to provide at every opportunity.”
The legal two-step is playing out among rising tensions over business restrictions enacted in response to the coronavirus pandemic, which has now killed 578 people in New Mexico.
Several lawsuits have been filed targeting Lujan Grisham’s emergency powers during the coronavirus pandemic, including a separate case that hinges on the governor’s authority to issue steep fines to businesses found to be in violation of the state’s public health orders.
But the governor’s authority to impose restrictions has been generally upheld, with a federal judge ruling in one recent high-profile case that a requirement that houses of worship operate at 25% maximum capacity was legal and did not violate religious freedoms.
Meanwhile, many restaurant owners have called the governor’s decision to reinstate the ban on indoor dining unfair, saying there is no evidence that eateries are to blame for rising COVID-19 case numbers across New Mexico.
In their lawsuit, the restaurant association said at least 210 restaurants around the state have gone out of business due to the state-ordered closures.
In response to the Supreme Court’s ruling, the restaurant association accused the Governor’s Office of gamesmanship to get the case moved to a different venue.
“Our restaurants will comply with the health order and continue using our COVID safe practices until we have our day in court,” the group’s executive board said in a statement. “We are still requesting that the Governor engage in a dialogue with our industry to address the pandemic in a way that does not ruin businesses.”
However, at least some restaurants have defied Health Secretary Kathy Kunkel’s July 13 ban on indoor dining by remaining open for service.
‘Higher risk activity’
Governor’s Office attorneys said in their Supreme Court petition Monday that restaurants were increasingly becoming a trouble spot for COVID-19 after being allowed to reopen at limited capacity on June 1.
Over the past two weeks when indoor restaurant dining was allowed, there were 49 “rapid responses” launched statewide after a restaurant employee tested positive for the virus, according to the court filing.
That was up from five such incidents at New Mexico restaurants in the first two weeks of June.
“Sustained indoor contact in an environment where face coverings cannot be worn, such as at restaurants, is unsafe,” said Lujan Grisham spokesman Tripp Stelnicki.
He also called the initial decision by District Judge Raymond Romero a “bad ruling” and said that Lujan Grisham had been preparing to file a response in the case on Monday before the judge issued the temporary restraining order that was later suspended.
The Governor’s Office petition to the Supreme Court included an affidavit from Human Services Secretary David Scrase, who said data exists that suggests indoor dining in the U.S. has been linked to spreading COVID-19.
“Preliminary data suggests that the reopening of indoor dining – even at a limited capacity – has generally correlated with a rise in cases among the general population and restaurant workers,” the motion says. “This data aligns with early scientific consensus identifying indoor dining as a higher risk activity.”
Virtual protest
Critics of the Lujan Grisham administration say the governor has unfairly singled out restaurants and other small businesses since the pandemic began in mid-March.
“The economic survival for many of these restaurants continues to hang in the balance,” state Republican Party chairman Steve Pearce said Monday.
While eateries are still allowed to operate patio dining at limited capacity, and to provide delivery and curbside takeout, the New Mexico Restaurant Association says such services are not practical in some cases.
“Not all restaurants and beverage service establishments have drive-thru or outdoor service available, thus rendering them unable to carry on any business under the current public health order, and serving the public outdoors in a record heat wave is detrimental to the health of the patrons, as well as the employees,” the plaintiffs’ original lawsuit says.
Many restaurants held a virtual protest of Lujan Grisham’s dine-in ban last week, though some restaurant owners have sided with the governor and decided to stay closed for now.
The Supreme Court did not indicate Monday whether it will hear oral arguments in the case, but ordered the restaurant association to file a response by July 27.
