The Oregon Restaurant & Lodging Association is asking a federal judge to block the governor’s “two-week freeze” that prohibits indoor and outdoor dining in restaurants in response to a rising number of coronavirus cases.
The association, which represents 10,000 food service and 2,000 lodging businesses across the state, argues the new restrictions will cause devastating effects for its members and their employees.
The association, along with the public policy group Restaurant Law Center, filed the lawsuit in U.S. District Court in Portland on Friday, two days after the governor’s new executive order took effect and less than a week before Thanksgiving.
The governor’s freeze, expected to last at least through Dec. 2, limits social get-togethers to no more than six people from no more than two households and limits restaurants to take-out and delivery only. It also limits grocery stores, retail malls and bars to a maximum of 75 % capacity, while encouraging curbside pickup.
When issuing the freeze, Brown acknowledged it will be difficult for everyone. “We are trying to stop this ferocious virus from spreading even more quickly and far and wide, and to save lives,” she said. As of Thursday, there have been 60,873 coronavirus cases and 808 deaths from the virus, according to state figures.
The suit alleges that the governor’s order violates due process and equal protection, and that Brown has exceeded her power in issuing it.
The association urges a judge to grant a temporary injunction that would bar the order’s enforcement, in whole or in part, while the case is pending.
Leaders of the association and the law center said they hope the governor and her staff will work with them to develop “a more reasonable and pragmatic approach,” according to a news release.
“We hope to engage in communication with Governor Kate Brown and her professional staff as soon as possible to work towards a resolution that has not been available to us at this stage,” said Jason Brandt, president of the restaurant association.
“The number one priority of America’s restaurant industry is to provide a safe and healthy environment for guests and employees,” said Angelo Amador, executive director of the Restaurant Law Center. “The industry is following applicable federal, state and local operating guidelines, and, where necessary, adapted their business models and adopted countless new measures to ensure that diners and workers remain safe. A blanket ban on indoor and outdoor dining is wrong and we believe the latest executive order in Oregon is also illegal.”
The governor’s office, through spokeswoman Liz Merah, declined to comment on the suit, but pointed to Brown’s announcement earlier this week in which she announced $55 million would be offered in financial assistance to support Oregon businesses who have been impacted by the coronavirus pandemic restrictions.
Several restaurant owners have filed supporting statements to the court.
Chad West is the co-owner of Mucho Gusto Mexican Kitchen, which has two locations in Eugene and one in Medford, as well as DickieJo’s Burgers, DickieYo’s Frozen Treats, and Bill & Tim’s Barbeque and Tap House in Eugene. West said his businesses were closed for nine weeks starting in mid-March due to the pandemic. They began reopening in May, but sales have dropped and West estimated he’s lost about $1 million in revenue, according to court records.
West plans to maintain delivery through online ordering through the two-week freeze, and has reduced labor by 340 hours a week, he said. “This model is not sustainable,” he added.
Dean Griffith, president of OSF International, the parent company of the Old Spaghetti Factory restaurants, said the five restaurants in Oregon have experienced decreasing sales since the start of the pandemic, when 414 were employed. Now, those restaurants have 315 active employees, he wrote to the court.
“We have worked hard with our teams to significantly reduce our costs and exposure, but it is very painful to our team members, many of whom cannot survive on unemployment benefits,” Griffith said. “The state did not provide adequate support to make sure they could continue to pay their rent, child care, or other bills.”
Old Spaghetti Factory sales are anticipated to drop to about $170,000 a week from $350,000 a week last year. “This does not pay the bills long term,” he wrote. “If we close again for all sales, we will not be able to reopen without significant support.”
Though not entirely unexpected, given recent skyrocketing COVID-19 case counts, news of the freeze came just as some restaurants were gearing up for Thanksgiving, often the busiest day of the year for restaurants that choose to stay open.
Brandt, the restaurant association president, said many restaurants in the state have lost revenue while they have bought and constructed distancing structures for indoor and outdoor use, and outdoor seating equipment, such as canopies, heaters, tables and chairs, in reliance on the governor’s previous executive orders, to meet state guidelines for safe social distancing.
Restaurant association members “need to open for the Thanksgiving week in order to be able to employ and pay their thousands of employees, and to participate in the busy Thanksgiving week, during which substantial numbers of customers dine out,” Brandt wrote to the court.
Before the lawsuit is heard, restaurants should continue to follow the governor’s orders, Brandt said in a statement. ”In the meantime, Oregon’s restaurant operators must continue to follow all orders executed by the Governor until a federal court addresses the serious legal concerns brought forth by the industry,” he wrote.
Support for the association’s lawsuit is far from universal among Oregon restaurant owners.
On Friday, other advocacy groups said they hoped to keep the focus on obtaining federal financial assistance for restaurants closed due to COVID-19.
“The lack of federal relief is more of a risk to restaurants’ surviving than the Governor’s Orders,” said Erika Polmar, chief operating officer for the Independent Restaurant Council, a national group led by celebrity chefs including Portland’s Naomi Pomeroy and Gregory Gourdet. “The bipartisan RESTAURANTS Act, which has the support of nearly half of the Senate, would put grants into the hands of business owners to make up for losses over the course of the pandemic. Dining at reduced capacity is a bandaid for an industry on the verge of extinction.”
Oregonian Staff Writer Michael Russell contributed to this story.
— Maxine Bernstein
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