Judge rejects restaurants’ challenge of indoor dining ban

Covid. Gov. Wolf said while most businesses are abiding by the orders to protect Pennsylvanians against the Covid surge, others have “repeatedly violated orders, ignoring the need to protect the health of their workers, customers and community.’’

29 Dec 2020 | 01:09

(AP) A federal judge in Pennsylvania has rejected a bid to block one of Gov. Tom Wolf’s latest orders to try to stem the spread of the coronavirus, a three-week shutdown of indoor dining at restaurants through Jan. 4, as Wolf went to court to sue restaurants defying the order.

The action in court came Dec. 23, as a growing number of restaurants defy Wolf’s shutdown order, and being cited or ordered closed for it.

The state Department of Agriculture ordered 40 restaurants to close last week for violating pandemic-related orders, while Wolf’s Department of Health sued 22 in the statewide Commonwealth Court that had defied orders to close indoor dining and maintain social-distancing protocols.

The lawsuit asks for an immediate order to shut down in-person dining, as well as damages.

“Most businesses are abiding by the orders in place to protect Pennsylvanians against the surge of COVID-19 cases across the state,’’ Wolf said in a statement. But the 22 restaurants in question “repeatedly violated orders, ignoring the need to protect the health of their workers, customers and community.’’

Wolf, meanwhile, is asking state lawmakers to approve $145 million in grants for hard-hit businesses, restaurants and bars in particular.

Melissa Bova, the vice president of government affairs for the Pennsylvania Restaurant and Lodging Association, said that her organization is urging its restaurant and bar members to comply with the orders, but that “whether it’s right or wrong, when you are in survival mode, they are going to do what they need to survive.’’

The daily totals of new reported infections in Pennsylvania have leveled in the past couple weeks, although hospitalizations continue to climb and the Department of Health on Dec. 23 reported one of the state’s highest daily totals for coronavirus-related deaths at 276.

In his order, U.S. District Judge Christopher Conner in Harrisburg denied the petition filed by two restaurant owners and a Hershey-area restaurant trade association that complained that the order violates their constitution rights to equal protection.

Conner wrote that Wolf’s order was “sufficiently tethered to the stated public-health objectives’’ and pointed to case law that largely has guided federal court decisions in challenges to coronavirus-related shutdowns, saying individual rights during a public-health emergency may take a back seat to the safety of the general public.

The plaintiffs’ belief that there is ``no material difference between dining and non-dining establishments is simply wrong,’’ Conner wrote, given the need to remove masks when eating or drinking and the closer and more sustained interactions at restaurants.

The restaurant plaintiffs also offered no meaningful challenge to scientific conclusions that masking is an effective mitigation measure, Conner wrote, and the state has no obligation to meet the defendants’ demand to produce mathematically precise data to back up the shutdown order.

Even if it did, the data “arguably support defendants’ decision to temporarily suspend indoor dining,’’ Conner wrote.

“Whether it’s right or wrong, when you are in survival mode, they are going to do what they need to survive.’’ Melissa Bova, Pennsylvania Restaurant and Lodging Association