Restaurant owners in Anne Arundel County woke up Wednesday prepared to lay off staff and close their doors for at least four weeks.
Instead, a judge granted an injunction to block the county executive’s order to ban indoor and outdoor dining amid the coronavirus pandemic.
The order from Anne Arundel Circuit Judge William Mulford II has no immediate impact on Baltimore or any other Maryland jurisdiction under a dining ban. But restaurant owners across the state may hold up the Anne Arundel order as they ask judges to step in and block dining bans in their own communities.
In Baltimore, Mayor Brandon Scott said he was reviewing the order. Last week, Scott banned indoor and outdoor dining across the city.
In a statement Wednesday, he noted the virus continues to spread through Baltimore. Some 28,500 people contracted the virus in Baltimore and more than 600 died; in Anne Arundel, 20,700 contracted the virus and about 300 died, according to state health department statistics.
“Our positivity rate, hospitalizations, and deaths due to COVID-19 remain at levels we have not seen since the spring,” Scott said. “My decision to temporarily suspend in-person dining was not made lightly, but focuses on the highest-risk activities where mask-wearing is not possible. These include eating, drinking and smoking. We will continue to analyze the Baltimore data to ensure the decisions we make protect our residents, businesses, and city from this COVID-19 surge.”
In Anne Arundel, restaurants can keep their doors open for nearly two more weeks. Ed Hartman, an attorney representing four Anne Arundel restaurant owners, filed for the temporary injunction Tuesday night. James King, P Titan Restaurant Group owns several county establishments, joined in the case.
The judge found merit in their arguments that a dining ban singles out restaurants over other businesses with the potential to spread the virus.
“The restrictions on Plaintiff’s businesses were applied in an inconsistent manner from other businesses that contribute significantly to Covid contact sources,” Mulford wrote. “In other words, there appears at this stage to be an arbitrary and capricious application of restrictions to Plaintiff’s businesses when compared to other business activities.”
On Monday, former mayoral candidate and deputy attorney general Thiru Vignarajah gathered with city restaurant owners to speak out against what they called a rushed and arbitrary decision by Scott to stop in-person dining in Baltimore. Vignarajah said he wasn’t surprised by Mulford’s order.
“When you have inconsistent contours of policy like Anne Arundel County and, frankly, Baltimore City did, it invites a lawsuit,” he said.
Vignarajah noted that Scott’s decision did not close the Horseshoe Casino Baltimore or fitness gyms.
“It makes no sense to say you can play poker and blackjack, you can run on a treadmill huffing and puffing indoors, but you can’t eat with your family and friends at socially distant tables outdoors,” he said.
The decision whether to sue in Baltimore would be up to restaurant owners, he added.
In Anne Arundel, the injunction allows restaurants to revert to 25% capacity inside and 50% capacity outside as laid out in County Executive Steuart Pittman’s previous executive order, until the next hearing on Dec. 28.
“All credit goes to Judge Mulford,” Hartman said. “It’s a tough step to take a contentious situation like that and suspend an order of the county executive. The judge felt we satisfied the elements of an injunction, at least preliminary, because that’s all we did. It’s just the early stages.”
County officials are reviewing legal options after the ruling and preparing for the hearing Dec. 28, a spokesman said. In a statement, Pittman said he was disappointed by the ruling.
“We believe the science from public health experts is clear, and it shows that taking actions to limit situations where people gather without masks will prevent the spread of this virus and ultimately save lives. We look forward to a full hearing on the merits of the case,” he said.
Like leaders across the state, Pittman wrestles with dual pressures to stave off a mounting emergency in hospitals, which have inched closer in recent weeks to reaching capacity, and to support workers whose livelihoods have been wrecked by the coronavirus pandemic. Restaurants have been particularly hard hit.
On Wednesday morning, Pittman had announced that he was rolling back some of the restrictions and would allow outdoor dining, as long as any tent surrounding patrons remained at least half open to the air.
Anne Arundel County health officer Dr. Nilesh Kalyanaraman has said the outdoor tents some restaurants erected to block out the winter cold function as indoor spaces with worse ventilation: They do little to mitigate the infection risks of indoor dining.
Restaurants had used previous relief grants from the county government to invest in outdoor infrastructure like tents and heaters to make dining in winter more attractive to potential customers.
“Right now, the tent’s already down,” said Kristos Miliotis, owner of Perry’s Restaurant in Odenton. “I was actually just getting ready to call [the] rental company to see if I can get a bigger tent. It’s a whole set of new problems, but hopefully, they’re good.”
Miliotis and some restaurateurs said they are unsure patrons will want to sit outside in winter, even with tents and heaters, and whether making outdoor dining available will be worth the investment. Others said it’s too late to redirect course.
“Shutting down a restaurant is something you can’t do with a click of a finger,” said Frederik De Pue, chef and owner of Flamant in West Annapolis. “Saturday night, we spent two hours dismantling everything. We had to cancel New Year’s Eve reservations for this weekend. We’re not getting them back.”
After Pittman’s initial restrictions announcement, De Pue laid off 12 of his 15 employees, anticipating the lost business over the bustling holiday season. The restaurant invested in an outdoor patio. De Pue said patrons would dine there, leaving generous tips, taking home expensive bottles of wine and ordering the entire tasting menu just to support the business.
He criticized Pittman’s reversal.
“Why was this not thought about a week ago when [Pittman] made the announcement?” he said. “We’re very resilient, but we don’t like to be tossed around.”
In Baltimore, restaurant owners gathered Monday in Fells Point to express their own frustrations with restrictions there. Patrick Russell, who owns the three Fells Point restaurants Kooper’s Tavern, Slainte Irish Pub and Woody’s Cantina, said the restaurants were blindsided by Scott’s decision. He had just ordered food.
“The timing was terrible,” he said. “We had to throw it all away.”