A temporary restraining order against a county ban on indoor dining will extend to Tuesday as a hearing before an Anne Arundel County judge stretched into a second day of testimony.
Circuit Judge William Mulford II is expected to make a decision on whether County Executive Steuart Pittman’s order banning indoor and outdoor dining while reducing capacity at other types of establishments was within his power and necessary based on data, as four restaurant owners argued it wasn’t in a lawsuit against him.
Following Pittman’s announcement of the restrictions, which had been set to take effect Dec. 16 before the injunction, the county executive rolled back the restaurant ban to then allow outdoor dining if any tent surrounding patrons remained at least half-open to the air.
The judge is expected to hear testimony Tuesday from Pittman, Health Officer Nilesh Kalyanaraman and Dr. Eili Klein, an assistant professor at Johns Hopkins Bloomberg School of Public Health. County restaurants can continue to serve patrons inside in the meantime.
The lawsuit brought by restaurant owners claims Pittman’s order lacks scientific evidence that restaurants are “a significant source of COVID-19 contamination,” and that the application of restrictions is inconsistent.
Monday’s testimony weighed the harm of a restaurant closure against the transmission risk dining inside could cause.
Mulford heard from the four plaintiffs: James King, who owns Titan Restaurant Group which includes recently opened Smashing Grapes and Blackwall Hitch in Annapolis; and the owners of Heroes Pub in Annapolis; La Posta Pizza in Severna Park; and Joe Lefavor, owner of Adam’s Taphouse and Grille Severna Park.
They argued that carryout and outside dining doesn’t cover the costs of overhead such as rent and utilities, along with food and labor.
There are more than 1,100 restaurants in Anne Arundel County that brought in $1.5 billion in sales in 2019, one of their best years, and have 62,000 county residents working at them, said Maryland Restaurant Association CEO and President Marshall Weston.
Dr. Jay Bhattacharya and Dr. Hubert A. Allen Jr. testified Monday, as well as in a similar Montgomery County lawsuit and other various suits brought by plaintiffs challenging restaurant bans across the country. Their expert testimony argued that food service workers and customers are safe at Gov. Larry Hogan’s 50% capacity guideline.
Bhattacharya, a professor of medicine and economics at Stanford University, authored a paper called “Great Barrington Declaration” that advocates for targeted protections for elderly and people to COVID-19 while letting younger people, who are at lower risk of dying, resume activities with safety measures in place.
Allen, a biostatistician based in New Mexico, believes restaurant staff should be treated like front-line health workers by receiving higher grade personal protective equipment from the government.
Contact tracing data provided by the Anne Arundel County shows that food service establishments are consistently ranked between the second to fourth most likely place where people who are positive have been in the two weeks before diagnosis. Working outside the home is consistently ranked first.
Monday’s hearing was a sample of court proceedings in a pandemic era. Expert and witness testimony was heard by Zoom video conference, occasionally glitching or needing audio adjustments. Objections were physically flagged down by Mulford, who waved both hands at the camera to catch a witness’ attention. Everyone present in the courtroom wore a mask at all times.
Outside the courthouse on Main Street, shoppers and restaurant patrons strolled the street in packs. During the profitable holiday season, many teenagers and families sat inside and outside restaurants flanking the road, potentially for the last time before Tuesday’s judgement.
In other jurisdictions in the state where groups have brought dining restrictions imposed by officials to court, judges have allowed the bans to stand. In Prince George’s County and Baltimore City, judges determined that the decisions to ban in-person dining were to decrease transmission of the coronavirus and in the interest of public health.
Judges in both jurisdictions recognized that restaurants are a unique industry because, unlike retail and others that can continue in-person operation at reduced capacity, customers must remove their masks to eat and drink.
The Restaurant Association of Maryland sued in Baltimore City and Prince George’s, but in a separate suit in Montgomery County, a judge also upheld the local decision to ban indoor dining. The hearing in the Montgomery County lawsuit lasted 10 hours last Wednesday.
Capital reporter Brandi Bottalico and Baltimore Sun reporter Christina Tkacik contributed to this story.
