2020 | Courts

UPDATED: Local restaurants taking Montgomery County to court to reinstate indoor dining

Dozens of county restaurants have joined as plaintiffs

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A press conference was held on Friday to discuss efforts to seek a temporary restraining order and an injunction against Montgomery County and other jurisdictions over their restrictions on dining. Marshall Weston Jr., the president and CEO of the Restaurant Association of Maryland, at right, is speaking.

This story was updated at 11:05 a.m. Dec. 18, 2020, to add comments from Ashish Alfred, at 12:05 p.m. and 12:40 p.m. with other details and comments.

The Restaurant Association of Maryland and dozens of restaurants in Montgomery County have turned to the courts in a push to roll back a recent order that banned indoor dining.

Terry Cullen, general manager at Tommy Joe’s in Bethesda, told Bethesda Beat on Thursday that the restaurants are asking a judge to rule that the county must go back to its previous policy of allowing restaurants to operate at 25% indoor capacity.

Cullen said that as of 4 p.m. Thursday, at least 35 restaurants in the county had signed on to be plaintiffs.

The Restaurant Association of Maryland held a press conference on Friday to further discuss the broader effort, which includes attempts to get injunctions and temporary restraining orders against Montgomery and Prince George’s counties for their bans on indoor dining. Baltimore City is also included for its ban on both indoor and outdoor dining at restaurants.

Around 100 restaurants combined from the three jurisdictions are plaintiffs.

The cases were filed Friday afternoon. As of Friday evening, there was no indication when a judge would hear the request in Montgomery County.

The Montgomery County Council passed an executive order on Tuesday that prohibits restaurants from providing indoor dining. Under the order, restaurants may still serve diners outdoors, as well as provide carryout and delivery. The order took effect at 5 p.m. on Tuesday.

Supporters of the county’s new restrictions feel that they are necessary to maintain safety during the pandemic. Opponents think it’s possible to safely serve diners indoors with proper social distancing and limited capacity.

Ashish Alfred, the owner of Duck Duck Goose in Bethesda, told Bethesda Beat Friday morning that he “started the conversation” among local restaurateurs about taking legal action to challenge the shutdown order.

“I reached out to a few restaurateurs I know in Montgomery County and said, ‘Guys, it’s easy for them to push us around because it’s very rare that we come together with a unified front, ’’’ he said.

Alfred said county officials haven’t proved that prohibiting restaurants from serving patrons indoors is necessary.

“If there’s intelligence that tells you it’s OK to be in a gym huffing and puffing, how does it tell you it’s not safe to be in a restaurant,” he said. “We believe we should be able to be open at 25% (indoor dining capacity), and if they want to close us, the burden of proof is on them to tell us why that is. We started doing a bit or research and there was no evidence to substantiate that restaurants are a petri dish for the coronavirus.”

Alfred said he is currently employing a manager and sous chef while Duck Duck Goose is only able to provide food for takeout, delivery and outdoor dining. He said he would be able to hire back four or five more people if he could open at 25% capacity for indoor dining.

Alfred spoke during Friday’s press conference, along with Lynn Martins, the owner of Seibel’s Restaurant and UpTown Pub in Burtonsville and two of her employees.

“My family were survivors until now. The government has taken my ability to save my business out of my hands,” Martins said.

The businesses that aren’t following the restrictions and guidelines should be forced to close, she said.

Before the pandemic, Martins had 45 employees. She had to cut that number to 10 during the summer, then had to close for six weeks.

Martin has since been able to have 15 employees, but told them on Friday morning that they would need to file for unemployment. 

“I will probably close Jan. 1 without indoor dining,” she said.

Martin said her gross revenue for December has only been $13,000 and she has to pay her landlord $15,000 before the end of the year.

“For the first time in 35 years, I can’t tell my employees that everything will be OK,” she said.

County Executive Marc Elrich harshly criticized the injunction effort on Friday evening, calling it a ‘flimsy approach.’ County Council President Tom Hucker said the council implemented the dining ban at the request of the county health officer, and thinks a reversal of the ban could lead to more cases of COVID-19.

The injunction and restraining order effort follows a ruling on Wednesday by an Anne Arundel County Circuit Court judge that temporarily blocked an order by County Executive Steuart Pittman that had banned indoor dining. The judge’s ruling came after four restaurant owners sued the county, The Washington Post reported on Wednesday.

On Friday night, Washington, D.C., Mayor Muriel Bowser declared a “pause” on various activities, including indoor restaurant dining, from Dec. 23 to Jan. 15.

Cullen said the Anne Arundel County ruling inspired Montgomery County restaurant owners to take action.

“As soon as we heard about the Anne Arundel County ruling, we [started] hoping there’s a glimmer of hope here to get us through this hard period,” he said.

Cullen said he and other restaurateurs “have to do something,” or else restaurant employees will be furloughed before Christmas. “… [I]t’s not a viable option to live off to go,” he said.

Dan Schere can be reached at daniel.schere@bethesdamagazine.com. Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.

Editor Steve Hull contributed to this story.