EDITOR’S NOTE: This story has been updated with comments from DHHS Director Robert Gordon.
The Michigan Restaurant & Lodging Association and two hospitality businesses filed a federal lawsuit Tuesday against the head of the Michigan Department of Health and Human Services in response to new business restrictions to stem the spread of COVID-19.
Hudsonville-based H.I.H. Inc., doing business as Suburban Inns, and Birmingham-based Heirloom Hospitality Group LLC joined the suit against DHHS Director Robert Gordon seeking declaratory and injunctive relief in the U.S. District Court Western District of Michigan.
Gov. Gretchen Whitmer and state health officials announced the new emergency order on Sunday as COVID-19 cases surge in Michigan and across the country. Starting Wednesday, the emergency measures require restaurants and bars to close dine-in services for three weeks, but allow establishments to remain open for take-out and outdoor dining. High schools and colleges will have to stop holding in-person classes, and entertainment businesses including movie theaters, bowling alleys and commercial casinos will have to close their doors.
The hospitality groups allege four violations of the U.S. and Michigan constitutions. The first count alleges the state order violates the U.S. Commerce Clause and Dormant Commerce Clause, claiming the order will drive people to neighboring states to dine in at restaurants.
“Plaintiffs’ businesses impact the flow of interstate commerce, since many of their customers will head to neighboring states where restaurants remain open,” the complaint says. “Furthermore, the November 15 Order impermissibly burdens the entire food industry supply chain — both suppliers within Michigan and suppliers to Michigan.”
The second count claims restaurants are being singled out for closure “compared to many other non-essential businesses such as salons, gyms, tattoo parlors, and retail establishments.”
The two remaining counts involve “uncompensated seizures” of restaurants’ real and personal property and claim the state’s order is unconstitutional because it did not involve legislative authority.
The MRLA and Suburban Inns declined to provide additional comment on the suit. Kenneth Brooks, partner at Honigman LLP who is representing the groups, could not immediately be reached for comment.
Gordon said in a statement that 54 COVID-19 outbreaks are currently associated with bars and restaurants in Michigan.
“Because about 50 to 60 percent of all COVID-19 cases cannot be tied to a known source of infection, and because tying cases to places where individuals may spend only an hour is difficult, there is an unknown number of further outbreaks not counted above,” Gordon said. “Targeted and temporary closures that include restaurants have been part of successful strategies for containing COVID surges in Western Europe. Other states are now following this approach, and it is supported by leading public health experts nationwide.”
He added that the order is lawful and falls within the DHHS director’s epidemic power. Gordon also said it’s “deeply unfortunate” the federal government has not extended additional relief for restaurants.
“The sooner Michiganders put a pause on indoor social gatherings, the more lives we will save, and the sooner we will be able to resume our normal social lives, including eating out, without fear,” Gordon said. “In the meantime, I encourage everyone to support their favorite restaurants by ordering take-out or delivery.”
COVID-19 cases rising
As of today, the state confirmed 272,034 COVID-19 cases and 8,128 deaths. Whitmer said during a Sunday press conference “the situation has never been more dire.”
The Department of Health and Human Services has been issuing emergency epidemic orders since the Michigan Supreme Court struck down a 1945 law that Whitmer had previously used to issue executive orders related to the pandemic.
The federal lawsuit was filed against the state after “careful deliberation” and as “the last available option” MRLA President and CEO Justin Winslow said in a prepared statement.
“We want to be clear that we made several good faith efforts in advance of the public release of the order issued Nov. 15 to reach a compromise with the MDHHS that would have supported the goal of minimizing risk while still allowing for the continued operation of dining rooms,” Winslow said.
The groups’ complaint calls for restaurants to “be afforded the same opportunities other businesses like gyms, salons and tattoo parlors have” under the Nov. 15 DHHS order.
The DHHS order is essentially a return to restrictions restaurants and bars faced for nearly three months at the beginning of the pandemic until they were able to reopen indoor dine-in services at 50 percent capacity starting June 8.
“We are hopeful for a swift and decisive victory in court so restaurant operators may return to what we know they do best — adding value to our lives and our economy by providing a great meal and exceptional hospitality in a safe, socially distanced, sanitized and regulated environment,” Winslow said.
About 2,000 Michigan restaurants and bars have permanently closed this year while more than 17,500 operated in the state last year, according to the MRLA.
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