Judge refuses to block ban on Michigan indoor dining

Michigan restaurant association sues state health director over coronavirus restrictions

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DETROIT – A judge on Wednesday refused to block Michigan’s ban on indoor dining amid a surge in coronavirus cases.

U.S. District Judge Paul Maloney said a “plausible explanation” for the state order exists: People can’t eat or drink without removing their mask, a step that could spread the virus.

Maloney turned down a request for an injunction with a week left in the three-week indoor dining ban. Restaurants predict that the steady loss of customers could put many of them out of business. They also fear a possible extension of the order by Michigan Gov. Gretchen Whitmer’s administration.

Related: What Gov. Whitmer said about chance of Michigan’s stricter COVID-19 rules extending past 3 weeks

The Michigan Restaurant & Lodging Association and some restaurants sued the state health director. They said they can safely provide indoor dining and were being treated unfairly when compared to other businesses.

High schools and colleges also were told to stop in-person classes and prep sports for three weeks. Casinos, movie theaters and bowling alleys also are closed, and gyms can’t host group exercise.

Maloney considered the restaurant group's claims under the federal constitution but declined to address whether the law used by the health department violates the state constitution.

The judge said he might ask the Michigan Supreme Court for guidance on that point.

“At this stage, the Court finds that Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their federal claims, and accordingly, the request for a preliminary injunction will be denied,” the decision reads. “But because the state law claims require consideration before the merits of the federal claims can be fully adjudicated, and because the Michigan courts have not yet had an opportunity to evaluate the constitutionality of M.C.L. § 333.2253, the Court is considering certifying questions to the Michigan Supreme Court ...”

After a similar request by Maloney, the court in October said a 1945 law used by Whitmer for dozens of virus-related orders was unconstitutional.

You can review the court’s decision in full below.

Michigan Department of Health and Human Services Director Robert Gordon issued the following statement Wednesday regarding the judge’s decision:

“We are happy that today’s ruling keeps in place measures that will save lives by limiting specific indoor gatherings that greatly increase the risk of COVID-19 spread. The science is settled: public health experts from around the nation and world say these types of actions must be taken to prevent the health care system from being overwhelmed by COVID-19 cases. These protocols on specific indoor gatherings, along with wearing face masks, social distancing and frequent handwashing, give Michigan a fact-based approach to slow the spread of COVID-19 so we can return to a strong economy and get back to normal safely as soon as we can.”

The Michigan Restaurant & Lodging Association issued a statement Wednesday on behalf of their president and CEO Justin Winslow:

“While we are disappointed with today’s ruling, it is important to note what Judge Maloney explicitly acknowledged in his ruling, stating that ‘Michigan restaurants are at risk of, or have already suffered, irreparable harm under Director Gordon’s EO.’ It is in that vein that we will now transition our efforts to preventing an extension of the MDHHS Order beyond December 8 and call on Director Gordon to provide clear and specific data to justify the sustained closure of restaurants across the state. Presumptions and generalizations will not suffice and should no longer be tolerated given the significant human toll they have wrought from closing restaurants for a second time this year. Moreover, we believe this industry, like any other that has been forced to close, deserves a clear pathway to the full reintegration of their business, with reliable criteria and metrics to be met from Director Gordon to facilitate that reintegration. We have ideas and reasonable solutions to offer and reiterate our willingness to engage in a substantive dialogue with this administration should they wish to do the same.”