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(The Center Square) – Michigan restaurants aren’t getting shut down without a legal battle.

Gov. Gretchen Whitmer announced Sunday a second, three-week lockdown under new Michigan Department of Health and Human Services emergency orders.

That order shuttered:

  • In-person learning at high schools, colleges, and universities
  • Theaters, stadiums, and arenas
  • Dine-in at restaurants and bars
  • Organized sports, except professional sports
  • Bowling centers, ice skating, indoor water parks
  • Bingo halls, casinos, arcades
  • Group fitness classes

The Michigan Restaurant & Lodging Association (MRLA) on Tuesday filed a federal lawsuit challenging the order that shuttered restaurants for the second time in 2020 in reaction to rising COVID-19 cases, hospitalizations and deaths.

“We have taken this action only after careful deliberation and as the last available option to prevent the outright devastation of restaurant operators and their hundreds of thousands of employees across the state,” MRLA President and CEO Justin Winslow said in a statement.

Winslow said the association attempted to compromise with MDHHS to tighten restrictions to 25% capacity and a 10 p.m. curfew through the new order’s duration, which would “undeniably challenge an already beleaguered industry,... [but it aimed] to stave off the far worse impact of outright closure,” Winslow said.

“We are hopeful for a swift and decisive victory in court so restaurant operators may return to what we know they do best – adding value to our lives and our economy by providing a great meal and exceptional hospitality in a safe, socially distanced, sanitized and regulated environment.”

Winslow cited state COVID-19 outbreak data that tracked only about 4.3% of all outbreaks to restaurants, despite serving millions of customers each day.

The industry already took a hit during forced shutdowns for months that shuttered about 2,000 restaurants in 2020. 

That number could climb to 6,000 more restaurants by spring under continued shutdowns, the MRLA said.

According to MRLA survey data, more than 40% of restaurants will temporarily close if dining rooms are closed, and roughly 250,000 restaurant employees will likely be laid off over the holiday season, without a robust state unemployment fund to act as a safety net.

On Oct. 2, the Michigan Supreme Court declared Whitmer’s sweeping executive orders after April 30 as unconstitutional and recommended the GOP-led Legislature and first-term Democrat work together to protect Michiganders.

For the most part, that hasn’t happened.

The lawsuit argues Whitmer used the state health department’s power to ignore the top court’s ruling.

While the order’s apparent intention is to slow the spread of COVID-19, the lawsuit argued the order won’t accomplish that goal.

“[T]he threat or likelihood of such contact and spread does not depend on whether a business activity is deemed by the government to be essential,” the complaint says. “That threat depends on the health and safety measures being taken by business owners to mitigate the threat.”

The lawsuit questions the type of businesses shut down by the order. While bars and restaurants must close, Michiganders can still get a tattoo or haircut –  services that require direct physical contact.

“Plaintiffs barely survived the devastating effects of Governor Whitmer’s invalid orders and now more than ever need to be afforded the same opportunities other businesses have like gyms, salons, and tattoo parlor have … before it is too late and Plaintiffs are forced to close many of their businesses forever,” the suit says.

MDHHS Director Robert Gordon said in a statement that his epidemic orders are lawful and were created after the Spanish Flu a century ago. 

Gordon encouraged Michiganders to support restaurants through take-out or delivery.

“Restaurants are at the heart of our communities, and it is deeply unfortunate that the federal government has not stepped up to extend financial relief for them. Unfortunately, COVID-19 spreads in indoor settings where individuals socialize without masks. There are currently 54 outbreaks associated with bars and restaurants in Michigan," Gordon said.

"Because about 50 to 60 percent of all COVID-19 cases cannot be tied to a known source of infection, and because tying cases to places where individuals may spend only an hour is difficult, there is an unknown number of further outbreaks not counted above. Targeted and temporary closures that include restaurants have been part of successful strategies for containing COVID surges in Western Europe. "

Gordon continued: "The sooner Michiganders put a pause on indoor social gatherings, the more lives we will save, and the sooner we will be able to resume our normal social lives, including eating out, without fear."

This isn’t the first lawsuit challenging the authority of MDHHS.

 A Michigan chiropractor in October sued over the statewide mask mandate.

Staff Reporter

Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.