Update: Supreme Court blocks restraining order allowing indoor dining.
July 19, 2020
CLOVIS — New Mexico restaurants briefly got the chance Monday to take things inside, until the state Supreme Court said otherwise.
On Monday morning, an Eddy County district court judge issued a restraining order for 10 days against the current public health order by Gov. Michelle Lujan Grisham and Health Secretary Kathy Kunkel that forbid indoor restaurant dining and limited service to carry-out and delivery.
In his order, District Court Judge Raymond L. Romero noted the state had not responded by an 11 a.m. Monday deadline established as part of a July 15 lawsuit filed by the New Mexico Restaurant Association and half a dozen businesses. Romero ruled restaurants could operate under the previously-filed public health order, which allowed restaurants and breweries to be open for indoor service at 50% capacity.
By early evening, however, the Supreme Court blocked that order by granting the governor a stay.
“I am grateful for the court’s quick action,” Lujan Grisham said in a release. “Businesses all across New Mexico have been battered by the effects of this pandemic; they are owed consistency and fairness, which my administration has endeavored to provide at every opportunity. We will continue to provide that while taking every single possible action to protect the health and well-being of New Mexicans — including workers and customers at our restaurants. I appreciate the high court’s recognition of the importance of consistent application and enforcement and the opportunity to bolster our case that high-contact indoor environments where face-coverings cannot be worn present an untenable risk given the incredible danger of COVID-19 at the moment.”
The restraining order did not address any other elements of the July 13 public health order.
Sid Strebeck said his K-Bob’s Steakhouse in Clovis, which has operated with a patio since the amended order took effect July 13, began serving customers inside Monday afternoon.
“I think it is appropriate that the judge issued that,” Strebeck said. “We’ve felt all along that, especially in eastern New Mexico, there’s no just cause for so many of these restrictions.”
Strebeck said his K-Bob’s Steakhouse was not involved with the lawsuit outside of its connection to the NMRA — two other K-Bob’s locations were — and some of the restaurants in the lawsuit were included as plaintiffs because they did business in the judicial district.
Some eateries, in response to the unfolding development, didn’t make adjustments.
“We’re not going to change anything we’re doing,” Ali Cattin, operations manager for Red Door Brewing, said Monday afternoon. “As far as we’re concerned, it’s an unresolved legal matter. We’ll keep tracking it, but we’re going to wait until it gets resolved by a higher court.”
While the matter remained in limbo Tripp Stelnicki, director of communications for the governor’s office, advised businesses to not change operations.
“Sustained indoor contact in an environment where face-coverings cannot be worn, such as at restaurants, is unsafe,” Stelnicki said. “A bad ruling by a judge doesn't change that. New Mexico business operators should continue to abide by the state's guidelines and restrictions; anything less is to risk the health and safety of employees, customers, their communities and indeed our entire state. The governor is incredibly grateful to the business owners who are complying and going above and beyond to protect public health.
“The danger of COVID-19 transmission has risen and continues to rise -- increased cases, as we have seen, lead to increased hospitalizations and subsequently more COVID-related deaths. New Mexico cannot afford to let up in its fight against this virus.”
Red Door’s Clovis location took two days to get patio seating added, which Cattin credited to the Clovis staff and a quick approval process by the state, and had a good weekend. Patio seating is restricted to 50% of the location’s indoor capacity.
Strebeck said the steakhouse has spent more than $100,000 on the patio area, which includes plenty of seating and around a dozen air conditioners, and added customers have been extremely flexible in supporting local businesses.
“It increased our operating costs, as we added 6,500 square feet of outdoor dining,” Strebeck said. “We’ve also had this unusually hot weather, and that’s been a challenge. As it gets a little cooler, we think people are going to love the outdoor dining. Come winter, we’re going to have fire pits or other things. Long-term, it’s going to be a good thing.”
The New Mexico Republican Party issued a release Monday afternoon in support of the restraining order.
"Today's court order demonstrates once again that the governor cannot make up the rules day-to-day when it comes to her public health order,” Chairman Steve Pearce said. “We have said all along that restaurants and other mom-and-pop businesses have been singled out unjustly during this pandemic. While this temporary restraining order will help restaurants for the time being, the governor's inequitable and punishing decisions these past few months have done irreparable damage to hundreds of restaurants and other small establishments."