2020 | Courts

Hearing on restaurants’ lawsuit against county scheduled for Wednesday

Plaintiffs say their businesses aren’t ‘significant source of COVID contamination’

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A judge is scheduled on Wednesday to hear a lawsuit in which dozens of restaurants are fighting Montgomery County’s order shutting down indoor dining to combat the spread of COVID-19.

The lawsuit — brought by the Restaurant Association of Maryland on behalf of restaurants in Montgomery County — argues that restaurants and bars are “not a significant source of COVID contamination.”

But guidance from the Centers for Disease Control and Prevention and the Maryland Department of Health suggests otherwise.

Last week, the County Council passed an executive order, proposed by County Executive Marc Elrich, that prohibits indoor dining in the county. Montgomery County’s order prompted a lawsuit from the Restaurant Association of Maryland, which is seeking an injunction and a temporary restraining order against the county’s ban.

A hearing is scheduled before Circuit Court Judge James Bonifant Wednesday morning.

The restaurant association is also seeking injunctions and temporary restraining orders against Prince George’s County and Baltimore City due to similar orders against indoor dining that they have passed due to the pandemic. Baltimore City also has shut down outdoor dining.

A hearing in the Prince George’s County case is also scheduled for Wednesday morning, according to state records.

About 100 restaurants have signed on as plaintiffs among the three jurisdictions. Of those, 28 are listed in Montgomery County’s lawsuit (some of the plaintiffs have multiple locations).

According to the complaint, obtained by Bethesda Beat, the plaintiffs assert that there is “no support for the proposition that destroying the foodservice industry in Montgomery County will have any material impact on the rate of transmission of COVID-19.”

However, guidance for bars and restaurants on the CDC’s website states that, as with other public places, limiting in-person interaction is key to reducing the spread of the virus, in addition to wearing masks. The CDC includes four levels of risk for transmission when it comes to restaurants, which are:

  • Lowest Risk: Food service limited to drive-through, delivery, take-out, and curbside pickup.
  • More Risk: Drive-through, delivery, takeout, and curbside pickup emphasized. On-site dining limited to outdoor seating. Seating capacity reduced to allow tables to be spaced at least 6 feet apart.
  • Higher Risk: On-site dining with indoor seating capacity reduced to allow tables to be spaced at least 6 feet apart. And/or on-site dining with outdoor seating, but tables not spaced at least six feet apart.
  • Highest Risk: On-site dining with indoor seating. Seating capacity not reduced and tables not spaced at least 6 feet apart.

A representative from the CDC could not be reached for comment on Monday.

When asked about the lawsuit on Monday, Mary Anderson, a spokeswoman for the county’s health department, wrote in an email that the County Attorney’s Office can’t comment until after the legal proceedings are over.

Elrich and County Council President Tom Hucker both defended the county’s order in interviews last week. Hucker said contact tracing data indicate a link between indoor dining and exposure to the virus.

Anderson, when asked Monday about contact tracing data for restaurants in the county, referred a Bethesda Beat reporter to the state’s contact tracing data.

According to the Maryland Department of Health, there were 37,458 cases between July 10 and Nov. 14 in which people who got the virus reported having gone to a “high-risk location.”

The health department asks people during contact tracing whether they worked at or visited any locations where they had prolonged exposure to others in the two weeks before feeling sick. High-risk locations include stores, restaurants, weddings and other social gatherings.

Of those who answered the question about high-risk locations during this period:

  • 21,314 answered that they had worked outside of their home
  • 13,714 answered that they had gone shopping indoors
  • 8,656 answered that they had dined indoors
  • 6,149 answered that they had dined outdoors

During the reporting period, there were also 25,819 people who reported not having gone to a high-risk location in the 14 days before getting sick, and 12,845 who didn’t answer the question.

More recent data were not available on the state’s website on Monday.

A list of ripple effects

The complaint says closing restaurants will cause “immeasurable, immediate and irreparable injury” to county residents for a number of reasons. Those include:

  • The likelihood that restaurant workers will be laid off just before the period between Christmas and New Year’s, which is normally a busy time for the industry
  • More restaurant owners will likely be forced to close permanently due to not having business during the holiday season
  • Food suppliers might be forced to lay off employees, or go out of business
  • The service industry, such as equipment manufacturers, could be hurt by the closure of restaurants
  • Restaurants won’t be able to pay rent, which will affect landlords and hurt landlords’ property management companies
  • Restaurant investors will suffer financially

The plaintiffs also claim in the suit that closing restaurants could lead to an increase in the spread of COVID-19, because people will turn to their homes or offices to have social gatherings.

The complaint says 70% of COVID-19 transmissions happen in the home, or another non-commercial location, and 1.5% of transmissions occur at restaurants and bars. The complaint doesn’t list the source of that data.

The complaint argues that the county’s “draconian measures” are “akin to sentencing for criminal procedures: restriction of freedom and taking of property.”

“When such basic rights are taken from the persons who are alleged to have committed a crime, these persons are afforded procedural and substantive due process, by which they have reasonable notice and an opportunity to be heard,” the complaint states. “Meaningful notice and an opportunity for all affected to be heard did not occur. The order was adopted and was immediately implemented.”

The lawsuit is asking for a temporary restraining order, a preliminary injunction and “injunctive relief.”

The plaintiffs listed are:

  • Silver Diner (Rockville)
  • Outta the Way Café (Rockville)
  • Gringos & Mariachis (Bethesda)
  • Olazzo (Bethesda)
  • Duck Duck Goose (Bethesda)
  • Trattoria Sorrento (Bethesda)
  • Social Heights Restaurant (Kensington)
  • DTI LLC (Rockville)
  • Medium Rare (Bethesda)
  • Il Pizzico (Rockville)
  • BTI Hospitality LLC (Rockville)
  • DTI 108 LLC (Gaithersburg)
  • COTY Group LLC (Darnestown)
  • The Rat Pack of Maryland LLC (Rockville)
  • The Rat Pack of Maryland LLC (Gaithersburg)
  • YOLO MD LLC (Potomac)
  • Raw Bar (Baltimore)
  • SMC Inc. (Bethesda)
  • Potomac Pizza (Chevy Chase, Potomac and Traville)
  • Clementine Café LLC (Chevy Chase)
  • G. Holdings Inc. (Washington, D.C.)
  • Sheger Spring Café (Silver Spring)
  • Palisades Lounge (Silver Spring
  • Barrell and Crow (Bethesda)
  • JMGM Group LLC (Gaithersburg)
  • Clare Inc. (Potomac)
  • Unique Asset Services LLC (Annapolis)
  • Tally Ho Restaurant (Potomac)

Dan Schere can be reached at daniel.schere@bethesdamagazine.com