2020 | Courts

UPDATED: Judge upholds Montgomery County indoor dining shutdown, for now

Another court hearing likely to explore issue further

This story was updated at 11:55 p.m. on Dec. 23, 2020, to add additional comments from Judge James Bonifant, County Executive Marc Elrich, Marshall Weston and attorneys from each side in the case. It was updated again at 3:25 p.m. on Dec. 24, 2020, to add comments from restaurateurs and medical experts who testified in the hearing.

A Montgomery County Circuit Court judge on Wednesday night upheld the county’s ban on indoor dining during the COVID-19 pandemic — rejecting a request by dozens of county restaurateurs to grant a temporary restraining order and injunction.

Judge James Bonifant said Wednesday that he would not enter an injunction against the county’s ban. But he will schedule another preliminary injunction hearing just after the holidays because he thinks there is “more to review.”

On Dec. 15, the County Council passed the indoor dining ban in response to the rising number of COVID-19 cases and deaths in the county. The order allows restaurants to serve through takeout, delivery and outdoor dining only. Heated tents are permitted if one side is left open.

Bonifant said that the high number of hospitalizations and deaths from the virus in the county is a concern.

Despite differing testimony from expert witnesses on Wednesday about how much restaurants are to blame for the spread of COVID-19, Bonifant said the County Council and County Executive Marc Elrich have “not acted arbitrarily” in enacting the indoor dining ban.

“The County Council and the county executive are trying to protect this community from death and the spread of the virus. I believe that standard is clear, and they’re doing the best they can with the information that they have,” he said.

“We are pleased with the outcome of today’s ruling,” Elrich said in a statement the county shared late Wednesday night. “The steps we have taken throughout the pandemic were done out of a grave concern for public health and today’s ruling supported that notion.”

Bonifant said on Wednesday that he would set a date for the next injunction hearing, and that it might be in 10 days.

“I know the harm that’s gonna do to the plaintiffs in this case. This is a busy, busy time of the year for them,” he said, referring to the period between Christmas and New Year’s.

The Restaurant Association of Maryland announced on Friday that it was seeking injunctions and temporary restraining orders in Montgomery and Prince George’s counties, as well as Baltimore City for their bans on indoor dining. Baltimore City has also banned outdoor dining.

The ruling on Montgomery County’s order Wednesday mirrored two others earlier in the day in Prince George’s County and Baltimore City. Judges upheld dining bans in both of those jurisdictions.

Wednesday’s three lawsuits came after an Anne Arundel County judge granted a temporary restraining order against the indoor dining ban there until Dec. 28.

About 100 plaintiffs were involved in the three lawsuits, the restaurant association has said.

Bonifant also heard a Clarksburg restaurateur’s separate request for a temporary restraining order against the county. Clarksburg Tavern on Frederick Road in Clarksburg filed its request on Tuesday.

Bonifant also did not grant the Clarksburg Tavern request, and grouped that case with the larger one during Wednesday’s proceedings, which lasted close to 12 hours.

Business owners illustrate dire economic situation

Bonifant said at the beginning of Wednesday’s virtual hearing that 32 “food service establishments” had signed on to the lawsuit.

During the hearing, three owners discussed the economic hardship they have faced during the pandemic.

Lynn Martins, the owner of Seibel’s Restaurant and Uptown Pub in Burtonsville, said her establishment is down to seven employees — from 45 exactly one year ago. She said sales are down 85% since Montgomery County’s shutdown of indoor dining went into effect, and if it continues, she might have to close next month.

Martins said operating with such uncertainty can be “strenuous” for business owners such as her.

“How do you come to work not knowing what to expect? Don’t you all prepare before you go to work for the day? I just can’t see running a restaurant, making orders, designing a menu not knowing how many customers are gonna walk in the door,” she said.

“I’m just a nervous wreck throwing food away. Do I buy food? Do I not buy food?”

Martins said she will close Seibel’s in January and February if the county’s ban continues, and will re-evaluate in the spring whether to reopen if there is a return to “normalcy.” She said “normalcy” doesn’t need to be 100% indoor dining, and she could operate at 25% capacity, albeit with minimal employees.

Robert Gilroy of Stained Glass Pub in Aspen Hill said his restaurant had 35 employees before the pandemic started in March, and has since laid off 15. If the indoor dining ban continues, another eight might have to be cut, he said.

Gilroy said that when Montgomery County reopened restaurants at 50% indoor capacity over the summer, business improved slightly. Sales had been down more than 70% after the first closure order went into effect on March 16, he said.

“[The reopening] got us back to maintaining somewhat of a budget and getting some employees back to a full-time schedule,” he said.

Gilroy said if the county were to go back to 25% capacity, Stained Glass Pub could “get by, but it wouldn’t be great.” A continued shutdown, he said, could force the restaurant to close.

Roberto Pietrobono — who owns Olazzo in Bethesda and Silver Spring, Alatri Bros in Bethesda and Gringos & Mariachis in Bethesda and Potomac — said the current closure order has been more devastating for him than the one at the beginning of the pandemic because outdoor dining is less of an option during the cold weather.

“I don’t think people understand the gravity of the situation. It’s worse than March,” he said.

Pietrobono said that if the shutdown continues, 40 to 50 employees at his restaurants might be laid off, and some of his restaurants might not survive.

Pietrobono said he and other restaurant owners are tied to personal guarantees with their landlords, which makes it harder to leave the property even if closing the restaurant would make more sense economically.

Restaurant Association of Maryland President Marshall Weston also testified.

Weston said two-thirds to three-quarters of the business for most restaurants comes from indoor dining.

“I have heard from restaurants that they are only making hundreds of dollars a day from carryout, yet their overhead and expenses remain the same, and [carryout and delivery] is nowhere near enough to cover those expenses, let alone adding on the cost of labor and food itself,” he said.

Weston said a survey his organization conducted in conjunction with the National Restaurant Association found that 45% of Maryland restaurant owners worried that they would close permanently in the next six months unless they received “significant financial assistance from the government.”

Weston said the survey was conducted while Montgomery County was allowing 25% indoor capacity, before indoor dining was banned.

The 45% statistic, when applied to Montgomery County, would mean the closure of about 830 restaurants and $913 million in lost sales, Weston said.

“Clearly, that has an impact on employees who would lose their jobs associated with those restaurant closures, and the impact to the ancillary businesses that do business with restaurants,” he said.

Weston said restaurant operators also worry about the lack of a definite end date to Montgomery County’s order.

“Without certainty as to the landscape in which a restaurant can operate, the restaurant is put in a very difficult position as to decide to close their doors permanently or remain open with decreased revenues for an indeterminate amount of time,” he said.

Medical experts offer differing opinions

The plaintiffs called Hubert Allen Jr., a New Mexico biostatistician, and Jay Bhattacharya, a Stanford University professor of medicine, to testify as medical experts. They argued that restaurants were not a primary cause of transmission of the virus.

Allen said he based his conclusion on contact tracing data posted on the Maryland Department of Health’s website. According to data collected through November, work outside the home and retail shopping were both identified as higher-risk activities than restaurant dining, he said.

The data are based on 37,548 responses from July 10 through Nov. 14.

Allen said social gatherings are a much bigger problem than dining, and that although there is some risk of spread, wearing masks and proper social distancing are effective.

“In the restaurants now, many of them are being very conscientious about doing COVID-19 safe practices, and I think we’ve put together a package of safe practices that, if used, do stop COVID-19,” he said.

Allen said going from 25% capacity to zero for indoor dining in Montgomery County will “not substantially change the course of the epidemic.” He said it might be more effective to focus on helping the most vulnerable populations, such as those older than 65.

“Is the closing of indoor dining from 25% to 0 going to stop the ICU from filling up?” he said.

Bhattacharya echoed those sentiments, and said his recommendation is for communities to do everything to protect the vulnerable, and let everyone else live their lives.

“If you want to understand who’s at risk, it’s really older people,” he said.

Bhattacharya said closing restaurants could have serious fallout for workers who might not be able to make ends meet, fall into poverty and become depressed.

“The restaurant industry is a major source of work in Montgomery County. … Shutting down the industry has devastating consequences,” he said.

Attorneys for the county called Dr. Earl Stoddard, the county’s director of the Office of Emergency Management & Homeland Security, and County Health Officer Dr. Travis Gayles as witnesses.

Gayles and Stoddard argued that the uptick of cases and deaths, as well as the increase in hospitalizations recently, made the indoor dining ban necessary.

Gayles pointed to guidance from the Centers for the Centers for Disease Control and Prevention that indoor dining poses the “highest risk” for transmission of the virus, compared to takeout and delivery, which is considered the “lowest risk.”

Gayles said that in his and other county health officials’ research, hospital utilization could be cut by about 25% if restaurants were closed.

Transmission of COVID-19 at restaurants became a bigger problem in early November, Gayles said, when contact tracing data showed that 23% of people who reported cases said they had been to a restaurant in the two weeks before feeling sick. That’s up from 16% in July, he said.

Ed Hartman, an attorney for the plaintiffs, pressed Gayles on whether he considered the economic consequences of the county’s shutdown order. Gayles said the county had, and he is aware of the hardship to businesses, but the health concerns overrode the economic ones.

“I don’t think it’s an apples to apples comparisons when we’re looking at mortality rate and deaths, compared to unemployment numbers,” Gayles said.

Stoddard’s comments largely mirrored those from Gayles.

“My focus was on the public health protections for our residents. We considered the fact that there would be an economic impact on our restaurants for sure,” Stoddard said.

Stoddard added that indoor dining poses a unique threat because it is one of the few activities in which people must take off their masks, while eating or drinking.

Closing arguments

Hartman said in his closing argument that restaurants and their employees would be devastated by the continuation of the shutdown.

“Their stories and their sincere and heartfelt testimony is a consideration of the public benefit that has to be discussed and has to be considered,” he said. “We’re not talking about one restaurant or one person. We’re talking about so many people in the public.”

Neither Hartman, nor Dan Cox, the attorney representing Clarksburg Tavern, could be reached for comment on Thursday.

Silvia Kinch, an attorney for the county, said in her closing argument that the public health emergency demanded swift action by county officials.

“Dr. Gayles and Dr. Stoddard, they’re on the ground. They’re dealing with this pandemic every day,” she said.

“Unfortunately, the pandemic does not provide the county’s experts with the ability to wait for perfect data, and it’s not reasonable to suggest that.”

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