Copyright © 2020 Albuquerque Journal
SANTA FE – Gov. Michelle Lujan Grisham said Wednesday her administration will allow restaurants across New Mexico to cautiously resume indoor dining this weekend, even as the state Supreme Court later in the day upheld the governor’s authority to shut it down amid the coronavirus pandemic.
In a unanimous ruling in response to a lawsuit filed by the New Mexico Restaurant Association, the state’s highest court determined the dine-in ban on restaurants, breweries and other types of eateries was reasonably connected to the COVID-19 outbreak, despite widespread protests that it generated.
“It’s well established that differing opinions doesn’t make an action arbitrary and capricious,” Supreme Court Justice Judith Nakamura said in announcing the court’s ruling.
The ruling represents the latest court victory for Lujan Grisham, whose use of emergency powers has also been upheld in previous court rulings dealing with business fines and houses of worship.
A spokeswoman for the governor said Lujan Grisham was grateful for the “impartial and thorough” review of the legal questions at play.
“The administration has taken and will continue to take every single necessary action to protect New Mexicans from COVID-19,” Lujan Grisham spokeswoman Nora Meyers Sackett said in a statement.
Even while defending its actions, however, the Governor’s Office signaled Wednesday it will ease business restrictions starting Saturday with COVID-19 infections, positivity rates and hospitalizations having declined for much of August.
Under the changes, dine-in restaurants and breweries will be allowed to reopen at 25% of maximum capacity. They had been operating at a 50% limit before being ordered closed in mid-July amid a surge in coronavirus cases statewide.
In addition, the governor said Wednesday a revised public health order – that will run through at least mid-September – will also increase the maximum capacity at churches and other houses of worship from 25% to 40%.
More changes could also be included in the revised health order, which the governor is expected to address during a remote news briefing on Thursday.
The first-term Democrat has not yet announced whether public schools will be allowed to resume in-person teaching for elementary school students after Labor Day.
Public and charter schools statewide have started the year under a remote learning model, and some districts – including Albuquerque – have already voted to extend that system through at least this fall.
“I know New Mexicans are ecstatic about our recent progress against COVID-19,” Lujan Grisham said Wednesday. “But, given what we know about this virus, we must sound a note of caution: Our progress is only as good as our willingness to stay the course. This virus is still looking for opportunities to spread.”
Stringent rules
New Mexico’s restrictions on restaurants have been among the most stringent of their kind nationwide over the last six weeks, and restaurants and wineries reacted to the announcement with mixed emotions.
“Anytime we can bring people out of the 100-degree heat and bring them inside, that’s a win,” said Sean Sheehan, founder of Sheehan Winery in Albuquerque. “So we’ll be very excited to not be putting up pop-up tents anymore.”
But Sheehan said he also saw the relaxed restrictions as an indication of the progress the state has made in handling the pandemic, which has claimed the lives of 755 New Mexico residents through Wednesday.
“I, myself, as a business owner and just as a citizen in Albuquerque, think that the governor has done a really good job handling the pandemic,” he said.
While eateries have been allowed to operate patio dining at limited capacity during the ban on indoor dining – and to provide delivery and curbside takeout – the New Mexico Restaurant Association has argued such services are not practical in some cases.
William Stafford, owner of Sadie’s of New Mexico, said he was excited to hear about the change and ready to reopen.
However, he said one of the biggest challenges with the new order will be staffing, since many of his employees have either found new jobs or are receiving unemployment benefits.
Tom Willis, owner of the 66 Diner of Albuquerque, said he was hoping the capacity limit would be higher.
“It’s better than nothing,” he said. “… We were hoping that (the governor) would reopen us at 50%, where we were before she closed us down, but we’ll take what we can get.”
The diner did not have a patio prior to the pandemic and for the past month-and-a-half has been operating in the parking lot underneath temporary tents.
While some staff members will be happy to work inside and out of the heat, Willis said, others remain fearful of working indoors in close proximity to others.
Over the past week, more than 30 employees at restaurants and similar establishments tested positive for COVID-19, according to state Environment Department records. A McDonald’s in Ruidoso, for example, reported 13 employees with the virus.
Restaurants’ lawsuit
The lawsuit filed by the New Mexico Restaurant Association, along with several restaurants around the state, sought to block the Lujan Grisham’s administration from enforcing its ban on indoor dining at eateries and breweries.
In its lawsuit, the restaurant group claimed at least 210 restaurants around the state have gone out of business due to the state-ordered closures.
But in large part, the lawsuit hinged on whether state health officials had shown proof that dine-in restaurants pose a risk to patrons and employees alike.
Angelo Artuso, an attorney for the restaurant group, said the state had fallen short in that regard.
“They have to show they’ve looked at the relevant data and provided a satisfactory explanation of why they took the actions they did,” Artuso argued during Wednesday’s oral arguments.
However, the Governor’s Office general counsel Matt Garcia said it should not be the judicial branch’s job to second-guess decisions made by state health experts. He also pushed back against arguments the ban on indoor restaurant dining amounted to a state-ordered quarantine.
“It’s not a quarantine that’s happening here,” Garcia said. “It’s a restriction of business operations.”
The Supreme Court, which heard the case with only four justices since Chief Justice Michael Vigil had recused himself, deliberated for less than an hour before handing down its decision.
New Mexico Republican Party chairman Steve Pearce described the ruling as “another disappointing setback,” while also urging voters to seek change at the ballot box in the November general election, including within the judiciary.
While Lujan Grisham has acknowledged the economic toll of her administration’s business restrictions, she and top Cabinet officials have argued indoor restaurant dining is unsafe due to the close physical proximity of people and the fact diners cannot wear a face mask while eating.
Journal Capitol Bureau reporter Dan McKay contributed to this report.
