The Michigan Restaurant and Lodging Association (MRLA) has filed a lawsuit on behalf of several hospitality groups against Michigan Department of Health and Human Services (MDHHS) director Robert Gordon.

The lawsuit argues that the MDHHS epidemic order issued on Sunday, November 15, which closes food and beverage establishments for indoor service for three weeks, violates the constitutional rights of business owners and unfairly targets restaurants. The plaintiffs, which include Detroit’s Heirloom Hospitality Group, are seeking a temporary injunction to the new epidemic order to avoid “catastrophic economic fallout.”

Reached by Eater on Tuesday, attorney general Dana Nessel’s office declined to speak directly on the lawsuit, stating in an email, “We are reviewing it with our clients and will respond in court.”

Robert Gordon, the subject of the claim, offered a statement in an email to Eater on Tuesday evening defending MDHHS’s epidemic order and reiterating that the decision fell within powers given to the director of the department. “Targeted and temporary closures that include restaurants have been part of successful strategies for containing COVID surges in Western Europe,” Gordon says in a statement. “Other states are now following this approach, and it is supported by leading public health experts nationwide.” While Gordon did express sympathy for individuals in the food and beverage industry who are being impacted by a lack of federal financial relief, he notes that COVID-19 spreads indoor settings like restaurants where individuals socialize without masks.

“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. In the meantime, I encourage everyone to support their favorite restaurants by ordering takeout or delivery,” Gordon says.

According to the filing, the MRLA argues that the most recent epidemic orders “impermissibly infringe” on the rights of restaurant owners as they were used to circumvent a Michigan Supreme Court decision striking down Gov. Gretchen Whitmer’s COVID-19 response executive orders in October.

The plaintiffs claim that food and beverage establishments should fall under the same requirements as other services like hair salons and tattoo parlors that are not impacted by the November 15 order. Those types of services are permitted to operate following CDC and MDHHS rules indoors. “Inexplicably, restaurants and bars are not given that option under the November 15 Order, even though they have continuously and unequivocally demonstrated for several months of operation during the pandemic that they can do so safely,” attorneys for the MRLA write in the complaint. They also argue that restaurant settings are “indisputably less likely to spread COVID-19 than the innumerable residential holiday social gatherings that will now occur in totally unregulated residential environments,” because restaurants follow strict health and safety protocols.

The lawsuit also points to the cold weather this fall and a lack of government social safety nets, such as business grants and unemployment insurance, as factors that could further damage the restaurant industry:

While restaurants could rely on federal dollars and utilize outdoor seating during the comparatively mild weather of the first shutdown, those federal dollars are gone and the weather in Michigan in November and December will make offering outdoor seating options physically and economically impossible.

The MRLA cites its own surveys to claim that “more than 40 percent” of restaurants are likely to close temporarily due to the November 15 epidemic order and approximately 250,000 employees could be laid off as a result. The MRLA also estimates that 6,000 food and beverage establishments could close by spring 2021 if the indoor dining closure becomes “prolonged.”

Heirloom Hospitality, whose owner Jeremy Sasson operates Prime and Proper and Townhouse, states in the restaurant group has laid off all but its “most senior team members” as a result of the pandemic. “While Heirloom survived the first shutdown… it will be economically gutted and may not survive a second shutdown,” the complaint states. Heirloom is also joined in the lawsuit by Suburban Inns, a corporation located in Hudsonville, Michigan, which operates multiple hotels as well as restaurants including Sharkee’s Bar & Grill in Holland and Big E’s Sports Grill.

In a statement released to Eater and other outlets on Tuesday, November 17, MRLA president Justin Winslow says that the lawsuit was filed “after careful deliberation and as the last available option to prevent the outright devastation of restaurant operators and their hundreds of thousands of employees across the state.” The trade group claims that it made “several good faith efforts in advance of the public release of the Order issued November 15 to reach a compromise with the MDHHS,” including reducing capacity to 25 percent of normal occupancy and implementing a 10 p.m. curfew.

Many restaurants were taken by surprise as the MDHHS announced its new epidemic order on Sunday. The rules are set to go into effect at 12:01 a.m. on Wednesday, November 18. Some establishments, including Oak and Reel in Milwaukee Junction, have already laid off their staffs as a result of the order, which is particularly limiting to business that do not have an outdoor dining option or menus that easily conform to carryout and delivery services.

As outbreaks have spiked across the state, largely driven by social gatherings, cases associated with restaurants and bars have also climbed. While proportionally restaurants and bars account for only 5.5 percent of all reported outbreaks in the state during the week of November 12, the data doesn’t speak to the magnitude of those outbreaks or how many people were infected. Experts also believe these outbreak numbers are underreporting the reality of the pandemic. During the week of November 12, there were 54 reported outbreaks involving bars and restaurants — double the number reported two weeks prior. Many of those reported outbreaks involved employees only. Approximately 15 of those outbreaks involved spread between employees and patrons.

In a statement to Eater, Gordon writes that “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 [in the weekly data].”

This appears to be the first time a state restaurant trade group has filed a lawsuit to fight COVID-19 mitigation orders. However, some restaurants in Dallas, Texas, and North Carolina have independently sued over forced closures.

2020-11-17 MRLA Verified Complaint.pdf

Eater is tracking the impact of the novel coronavirus on the local food industry. Have a story to share? Reach out at detroit@eater.com.

Update, Tuesday, November 17, 5:31 p.m.: This story has been updated with a statement MDHHS director Robert Gordon.

Update, Tuesday, November 17, 3:54 p.m.: This story has been updated with a statement from Attorney General Dana Nessel’s office.

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