Federal judge curbs Pennsylvania's ability to close restaurants over COVID

The decision also overturns a 25-person cap on dining room capacities.
Photograph: Shutterstock

The chances of restaurants and bars being shut down again in Pennsylvania were dashed yesterday by a federal judge, who decided Gov. Tom Wolf lacks the constitutional authority to close businesses or set a cap on how many people can occupy a dining room.

The decision could have more of an effect elsewhere than it does in Pennsylvania. Restaurants there have been allowed for some time to provide indoor service at limited capacities, with the cap set to rise under a directive from Wolf to 50% as of Sept. 21.  The ruling did not address those limits, but did strike down Wolf’s directives that no more than 25 people be allowed inside a dining room at any given time.

The decision is likely to hearten restaurateurs and tavern operators elsewhere who have turned to litigation in hopes of lifting bans on indoor service or raising the capacity caps on indoor dining.  Lawsuits challenging the limitations set by governors have been filed in Texas, New York, Michigan, Nevada, Florida, Louisiana, Colorado, North Carolina and Iowa. The actions invariably accuse the governor or other state officials of exceeding their constitutional authorities by setting business limits via executive orders or regulatory declarations.

A ban on bar service set by Gov. Doug Ducey, a former restaurateur, was recently upheld in Arizona after an estimated 100 bars there sued to overturn the shutdown.

Restaurateurs in Pennsylvania have been very outspoken in their opposition to Wolf’s shutdown of service.  The Pennsylvania Restaurant and Lodging Association (PR&LA) is soliciting signatures for a petition that calls for removing restrictions on restaurants’ operations. Groups of operators have also converged on the state capital to meet with Wolf.

Their ire was triggered by the governor’s decision in mid-July to temper a spike in new COVID-19 cases by rolling back maximum dining room capacities to 25%. “Reducing indoor dining capacity to 25% is essentially the same as eliminating it completely since there is no scenario where a restaurant can survive at that level of occupancy,” the PR&LA asserts on its website.

The association and the governor’s office have yet to issue a public response to yesterday decision by Judge William Stickman IV. Ruling in the U.S. District Court for the Western Region of Pennsylvania, Stickman noted that Wolf’s shutdown of restaurants early in the pandemic and the subsequent 25-person cap he placed on capacities were well-intentioned.

“However, laudable ends are not alone enough to uphold governmental action against a constitutional challenge,” he wrote. “Indeed, the greatest threat to our constitutional liberties may arise when the ends are laudable and the intent is good—especially in times of emergency.”

The suit was filed by several counties in western Pennsylvania.

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