Philly Restaurateurs Can't Block Mayor's New Virus Rules

By Matt Fair
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Law360 (November 20, 2020, 2:39 PM EST) -- A federal judge on Friday shot down an injunction bid from a group of Philadelphia restaurateurs aimed at barring implementation of a new ban on indoor dining announced by the city in the last week in light of a surge in new coronavirus infections.

U.S. District Judge Nitza Quiñones Alejandro ruled that, for the time being, the threat of even more COVID-19 infections and death outweighed what she admitted was the irreparable harm the restaurants say they are going to suffer as a result of the ban.

"Here, granting a temporary restraining order may result in more transmissions of COVID-19 and more cases of serious illness and death," she said in a brief order rejecting the group's bid. "Thus, the potential harm to the public is significant and not outweighed by the irreparable harm plaintiff might suffer."

The order comes on the heels of a complaint filed on Thursday by the Philadelphia Restaurant Owners Against Lockdown LLC alleging that the new indoor dining ban, part of a slate of new restrictions Mayor Jim Kenney's administration announced on Nov. 16, violated their constitutional rights.

They argued that the mayor's so-called safer at home order had been implemented without the administration providing any clear data that the recent uptick in new COVID-19 cases was in any way tied to indoor dining.

"To date, neither ... Kenney nor the city of Philadelphia have publicly produced the data, studies, reports or expert guidance they have relied upon in their determination that indoor dining must immediately cease, whereas other indoor activities may continue unabated," the group said.

They claimed that the order ran afoul of substantive and procedural due process rights, and that barring them from using their locations for indoor dining constituted an unlawful taking in violation of the Fifth Amendment.

Similarly to trends occurring elsewhere in the state and across the country, new COVID-19 cases in Philadelphia have spiked to record highs, including one day with nearly 1,100 new infections, in recent weeks.

The new cases prompted Kenney to announce on Nov. 16 that the city would begin imposing new restrictions shuttering certain businesses, including gyms, movie theaters and casinos, and barring restaurants from providing indoor service.

The restrictions are slated to remain in place until Jan. 1, according to the city.

But the lawsuit filed on Thursday said that the new rules placed an arbitrary burden on restaurants while allowing other businesses, such as major big-box retailers, to remain open.

"COVID-19 does not distinguish between the indoor airspace of other businesses that defendants ... are allowing to remain operational," the group said. "The edicts of the 'safer at home' policies have no relation to nor bearing upon the conduct of business, liberty and other constitutional rights."

While the group asked for a temporary restraining order barring the new rules from going into effect, Judge Alejandro found that the group had failed to show it had "better than negligence" chance of proving its alleged constitutional violations.

"Specifically, this court finds that genuine disputes of material fact exist, at this stage, as to whether defendants' imposition of the indoor dining ban was arbitrary, irrational, or shocked the conscience, or deprived plaintiff of a protectable interest without a meaningful opportunity to be heard," she said. "In light of these genuine disputes, plaintiff has not met its burden with respect to the extreme remedy of a temporary restraining order."

Mayoral Communications Director Deanna Gamble defended the city's move in a statement on Friday.

"We are still reviewing the lawsuit, but the prohibition on indoor dining is a critical part of our strategy to slow the spread of COVID-19 at a time when infection rates are surging and hospitalization rates are dangerously spiking," she said. "As health commissioner Dr. Thomas Farley noted yesterday, these restrictions are temporary — death is permanent."

An attorney for the challengers did not immediately return a message seeking comment.

Prior challenges to business restrictions imposed on the state level have been met with mixed success.

While the Pennsylvania Supreme Court ruled in April that Gov. Tom Wolf was acting within his emergency authority under state law when he issued an order closing nonessential businesses when the pandemic first washed across the state, a federal judge later threw out the remaining restrictions in September.

The federal case is currently on appeal to the Third Circuit, where the court agreed in October to stay a trial judge's order axing the restrictions.

The challengers are represented by Brian Fitz of Fritz & Bianculli LLC.

Counsel information for the city was not immediately available.

The case is Philadelphia Restaurant Owners Against Lockdown LLC v. James Kenney, case number 2:20-cv-05809, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Katherine Rautenberg.

Update: This story has been updated to reflect U.S. District Judge Nitza Quiñones Alejandro's ruling.

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