Anti-Mask Diner Ordered To Require Face Coverings Or Close

By Matthew Santoni
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Law360 (February 3, 2021, 9:35 PM EST) -- A Pittsburgh-area restaurant defying Pennsylvania's orders to require face masks and limit occupancy during the coronavirus pandemic must start following the rules or shut down, after a state court judge granted the Allegheny County Health Department an injunction on Wednesday.

Allegheny County Court of Common Pleas Judge John McVay said the orders — mandating masks for restaurant staff and customers who aren't eating — passed constitutional muster against the background of the COVID-19 pandemic. The potential harm to public health that The Crack'd Egg would cause by remaining open without masks or social distancing outweighed the harm the business might face by following the state's orders, the judge said.

"The public health of others, by not preventing community spread, will be harmed including the public health of all business owners, employees and customers," Judge McVay wrote in his opinion Wednesday. "If I did not grant the injunction, restaurants that are following the rules will become less likely to do so and thus further increasing public health risks to everyone involved and possibly increasing overall community spread."

The court granted an emergency injunction bid by the health department, which required The Crack'd Egg and its parent company, The Cracked Egg LLC, to shut down until the restaurant submits plans to follow the pandemic mitigation orders.

As Pennsylvania Gov. Tom Wolf and Health Secretary Rachel Levine issued orders in the summer mandating the public wearing of face masks and limiting indoor restaurant occupancy to 25% or 50%, The Crack'd Egg had reopened at full capacity without requiring anyone to wear masks, the opinion noted. Several health department inspections had warned owner Kimberly Waigand that she should follow the orders, but she continued to defy them and stayed open even as the county suspended the restaurant's operating permit, advertising her actions as a stand for "freedom."

Allegheny County filed a lawsuit against the restaurant in September, and the restaurant hit back with a federal countersuit calling the mask orders unconstitutional. The Cracked Egg LLC filed for Chapter 11 bankruptcy in October so it could halt the litigation and stay open while reorganizing, but the bankruptcy court lifted the stay on the county's case on Jan. 7 and the restaurant asked to withdraw its bankruptcy filings on Monday.

In briefs and at a three-day evidentiary hearing last week, attorneys for The Crack'd Egg argued that the mask order was unconstitutional, pointing to a federal judge's September order in County of Butler v. Wolf that would have lifted some pandemic restrictions, like limits on crowd sizes, had it not been appealed to the Third Circuit.

Judge McVay noted, however, that the County of Butler decision didn't address masks, and he disagreed with other parts of the federal court ruling that said Jacobson v. Massachusetts , a 1905 decision on government authority during a pandemic, no longer applied.

"When read in context and in its entirety, Jacobson can substantially be reconciled with current constitutional law and be viewed as a forerunner of our present rational basis test," he wrote. "The existence of a pandemic should be considered as a factor when applying the rational basis test and does not in any way mean that our current constitutional analysis needs to be suspended or lowered. … The emergency declarations and subsequent COVID-19 mitigation orders of Governor Wolf and Dr. Levine were all taken with the undoubted intent to protect public health during a pandemic, and thus were rationally related to a legitimate government interest."

While The Crack'd Egg had also argued that the mask mandate hadn't followed a typical state process for proposing, vetting and approving regulations, Judge McVay said the Supreme Court of Pennsylvania's April ruling on another coronavirus-related case, Friends of Danny DeVito v. Wolf , had said the governor's emergency powers included suspending the normal rulemaking process.

"To require the commonwealth or the ACHD to follow time-consuming rule-making procedures would result in greater harm to the general public," he wrote. Likewise, the Allegheny County Health Department had independent authority to issue orders to abate public health hazards and the spread of diseases, including COVID-19.

Turning to the injunction, the judge said he believed that COVID-19 was a serious threat, and he said he gave little weight to the restaurant's experts who sought to downplay the effectiveness of masks or the number of true positive tests.

"Analyzing the evidence in the context of the rational basis test does not require proof beyond a reasonable doubt. Further, I do not find that evidence of 100% mask efficacy or that outbreaks have occurred at the Cracked Egg are requisites to prove immediate or irreparable harm to preventative public health," he wrote.

The judge said he believed Waigand when she said that her revenues had cratered during the initial shutdown orders that limited restaurants to takeout only, and he also believed her when she testified that she would never require masks. He asked her in his opinion to reconsider working with the health department on a plan that would let her reopen.

"We do intend to appeal," said Sy Lampl of Robert O. Lampl Law Office, one of the attorneys representing the restaurant. "While we have great respect for Judge McVay both as a person and jurist, we obviously disagree with his ruling and are disappointed in the outcome."

Dr. Debra Bogen, director of the county health department, said the judge's ruling was a welcome one.

"Today's ruling validates the Health Department's actions to protect the public during this pandemic," she said  "I thank everyone on our legal and food safety teams who worked tirelessly on this case."

The Allegheny County Health Department is represented in-house by Vijyalakshmi Patel, Michael Parker and Jeffrey Bailey.

The Cracked Egg LLC is represented by James R. Cooney, Robert O. Lampl, Sy O. Lampl, Alexander L. Holmquist and Ryan J. Cooney of Robert O. Lampl Law Office, and Dennis M. Blackwell of The Blackwell Law Firm.

The case is County of Allegheny v. The Cracked Egg LLC, case number GD-20-009809, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Regan Estes.

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