County Circuit Courts Uphold Officials’ Decisions to Ban Indoor Dining

After an 11-hour hearing, Montgomery County Circuit Court Judge James Bonifant upheld an executive order issued by County Executive Marc B. Elrich (D) Wednesday that prohibits indoor dining in Montgomery County restaurants.

Similar dining restrictions were upheld by circuit court judges Wednesday in Baltimore City and Prince George’s County, WTOP reported.

The request to reverse Elrich’s executive order through a temporary restraining order was filed by local restaurants on Dec. 18. 

On Nov. 10, Elrich issued an executive order that decreased the maximum capacity of restaurants and retail establishments to 25%, ahead of Gov. Lawrence J. Hogan Jr.’s Nov. 17 order that limited their capacity to 50%.

Following the fall surge, Montgomery County Health Officer Dr. Travis Gayles and Dr. Earl Stoddard, the director of the Montgomery County Office of Emergency Management & Homeland Security, advised the county executive to consider taking more aggressive precautions to mitigate the virus’ spread and reduce the county’s hospitalized cases. They based their recommendations on a series of sources, including studies, daily reports from the Maryland Department of Health, different regional surveillance systems, hospital modeling from Johns Hopkins University and state contact tracing data.

On Dec.15, Elrich issued an executive order suspending all indoor dining at county restaurants. Outdoor dining, drive-through and carryout services are still permitted. 

This order was also approved by the Montgomery County Council and the Montgomery County Board of Health Regulations, said Silvia Kinch, the attorney representing Elrich.

Wednesday’s hearing combined two lawsuits waged by a collective of county restaurants. 

The plaintiffs, 32 of whom were represented by attorney Ed Hartman and one whose lawyer was Del. Daniel L. Cox (R-Frederick), argued that Elrich’s order will lead to significant financial burdens and irreparable damage to their businesses.

Cox said that his client has been given a “sentence of death” because other establishments are largely allowed to remain open while restauranteurs are forced to limit their capacity to operate their businesses and are laying off their employees.

“Please, please, at least do a temporary restraining order for Christmas,” he asked Bonifant.

Hartman said that it is “arbitrary, capricious and downright dangerous” for the county to destroy restaurant owners’ lives based on what he called “sketchy” contact tracing data.

Hartman knocked contact tracing data on the basis that many state residents are hesitant to comply with contact tracers when they call. He also argued that there’s a very limited way to determine where exactly the virus was contracted even when people choose to comply.

“Their data is of very little value,” Hartman asserted.

“We have to use the data available to inform the decisions that we make,” Stoddard said.

Both Gayles and Stoddard said that executive orders issued by the county are frequently revisited and that it typically takes between two and six weeks to gauge their impact based on hospitalization and infection data.

“We are in a declared emergency — this is not just your every day. We are at war with a virus that has proven to be deadly,” said Kinch.

“Unfortunately, the pandemic does not provide the county’s experts [the ability] to wait for perfect data.”

Bonifant said he will schedule a preliminary injunction hearing for this case at a later date.

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