County Executive Steuart Pittman announced Wednesday restaurants could stay open and serve customers inside at 25% capacity, making a lawsuit challenging his ban on indoor dining moot.
Titan Hospitality, owned by former state delegate James King, took Pittman to court over his executive order that shuttered indoor food service for a month as coronavirus cases reached record heights in Anne Arundel County and Maryland. King decided to drop the lawsuit after a late-night phone call with Pittman, who testified Tuesday he was reconsidering the closure based on recent, and more promising, health metrics.
“The metrics were giving us all the signals we needed,” Pittman said in a press call Wednesday.
Pittman issued another executive order Wednesday granting restaurants and other food service establishments the ability to serve inside at 25% and outside at 50% capacity, as long as outdoor tents are partially open to the air. Enclosed outdoor tents pose a higher risk for transmission than eating inside because they lack restaurant-grade ventilation systems. The order limits delivery service fees to 15% and restated county grants available to businesses as negotiations around a federal stimulus package continue to stall.
Pittman had announced a four-week indoor dining ban in early December that King and other restaurant owners challenged in court. Anne Arundel Circuit Court Judge William Mulford II suspended the ban until he heard the restaurants’ arguments and from the county executive. He was expected to make his decision Wednesday before Pittman’s announcement.
Pittman’s December order concentrated on lowering hospitalizations that were predicted to overwhelm hospitals across the state. Coronavirus cases doubled from September to November, with hospitalizations and deaths following several weeks later. Hospital predictions compiled by John Hopkins showed 9,000 COVID-19 and regular patients would need care in late January and early February. An updated projection estimates a peak of 4,000 people will require hospital care during that time, a situation that would stress, but not overwhelm, county and state hospitals.
Anne Arundel Medical Center’s modeling predicts a peak 398 admitted patients, with 123 diagnosed with COVID-19, at its hospital, its president Sherry Perkins wrote in an affidavit. AAMC has 349 licensed beds, not including emergency surge beds, she wrote.
The county executive credits actions by the county and state, and its residents, for lowering the seven-day average case rate from a peak of 48.7 people testing positive per 100,000 residents on Dec. 12. Anne Arundel County hospitals are treating COVID-19 patient loads similar to the spring surge.
AAMC treated a peak 109 COVID-19 patients this spring, with a record low of eight COVID-19 patients during the summer. As of Dec. 23, the hospital had 92 admitted COVID-19 patients, Perkins wrote.
There were 69 COVID-19 patients admitted to Baltimore Washington Medical Center as of Dec. 24, the most the hospital has treated since April. The hospital has treated 1,196 COVID-19 patients since March and 34% required ICU care. BWMC has 47 ICU beds, and half were created to treat COVID-19 patients.
COVID-19 patients admitted to the ICU this spring spent an average of two weeks in critical care. Regular patients in the ICU spent four to five, on average, Karen Osclamp, president and CEO of University of Maryland Baltimore Washington Medical Center, wrote in an affidavit.
Both hospitals are part of a statewide effort to accept patients from hospitals nearing capacity.
It will take around three weeks before the holiday season movement and current restrictions appear in health data and even longer to reflect in hospitalization rates.
King and Pittman said they share a goal of opening restaurants at 50% capacity as many businesses are losing revenue at the 25% restriction. It’s now on restaurants to demonstrate they can follow strict health guidelines and keep their staff and customers safe in an environment susceptible to COVID-19 transmission, King said. The virus primarily transmits by respiratory droplets that can concentrate and spread, especially in tight, indoor spaces and when people are not wearing masks.
“Obviously, we’re happy about the decision, but it’s a little bittersweet because, at 25%, the majority of restaurants in Maryland are still operating at a deficit,” King said. “We won — but won the ability to go back and lose money. Now we’ve gotta keep pushing to get businesses back to a point where they can be sustainable.”
In Tuesday’s hearing, Gregory Swain, an attorney for Anne Arundel County, said Mulford shouldn’t put himself in the county executive’s shoes by deciding the validity of emergency health orders. The dropped lawsuit takes the decision out of Mulford’s hands, which the judge said he was hoping for during Tuesday’s hearing.
“I’m happy to turn it back to you,” Mulford said.
Anne Arundel County restaurants will also begin collecting customers’ contact information to notify them if a person positive for COVID-19 reports visiting the restaurant.
King was joined in the lawsuit by fellow restaurateurs Charles Priola, owner of La Posta Pizza in Severna Park; Kurt Beall, owner of Heroes Pub in Annapolis, and Joe Lefavor, owner of Adam’s Taphouse and Grille Severna Park.
Priola testified Monday his restaurant, with the space to fit 170 customers, is currently serving 35 diners inside under the 25% restriction. Priola said a majority of his business’ income comes from large banquets La Posta Pizza can no longer host. The capacity restriction and carryout don’t cover the cost of an outdoor tent, he said, and doubted customers would sit outside exposed to the winter air.
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“This has never been a political fight for us; this has always been about our jobs and livelihoods,” King said. “We want to talk about the issues and solutions to problems that face our industry. I look forward to continuing that dialogue.”
Pasquale Carannante, owner of Bella Napoli, filed a second lawsuit against Pittman, the county Health Department and its liquor board on Dec. 17, challenging the indoor dining ban. Now that Pittman rescinded his order, Carannante said Wednesday he would drop his lawsuit since “there’s nothing to fight for then.”
A group of fitness and sports centers in the county filed for a temporary restraining order and injunction to stop a 25% capacity restriction part of Pittman’s December order. The plaintiffs include Athletic Performance Incorporated and SSM Sports in Odenton, Benfield Community Sports Center in Millersville and Soccer Dome in Jessup. The owners hired Hartman, the attorney in the restaurant lawsuit.
Mulford denied the temporary restraining order on Dec. 23, stating it was unlikely the lawsuit had merit or was in the public interest to resume youth sports.
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 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. In a separate suit in Montgomery County, a judge also upheld the local decision to ban indoor dining.