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Maryland judge refuses to halt Montgomery County’s indoor dining ban as coronavirus cases continue to surge across region

Maryland Gov. Larry Hogan (R). (Michael Robinson Chavez/The Washington Post)

After a 12-hour hearing, a Maryland judge upheld a ban on indoor dining in Montgomery County late Wednesday night, agreeing with a judge in neighboring Prince George’s County who made a similar ruling earlier in the day.

Their verdicts came as coronavirus cases continued to surge across the region and Democratic lawmakers and officials urged Gov. Larry Hogan (R) to tap reserve funds for pandemic relief.

“The county council, the county executive are trying to protect this community from death and from the virus,” Montgomery County Circuit Judge James A. Bonifant said in his concluding remarks. “I believe that standard is clear, and I believe that they are doing the best they can.”

Attorneys for the Restaurant Association of Maryland, which brought the lawsuit on behalf of several dozen restaurants in Montgomery, said there was not enough evidence directly linking indoor dining and new coronavirus cases to merit a ban. The restriction, which took effect last week, would worsen layoffs and furloughs and lead to more closures in an industry already pummeled by restrictions, they added.

A series of coronavirus restrictions were announced across the D.C. region on Dec. 10. Parts of Maryland will eliminate both indoor and outdoor dining. (Video: The Washington Post)

Bonifant said he recognized the hardship that Montgomery restaurants would face without indoor dining, particularly over the holiday period. He said he would schedule a preliminary injunction hearing in January to review additional evidence on the case.

“At this stage . . . I cannot agree to enter the temporary restraining orders,” he said.

Attorneys representing the restaurants called on owners who discussed their revenue losses and on Jay Bhattacharya, a Stanford University professor of medicine and economics.

Bhattacharya co-wrote a controversial paper in October that advocated against closures as a way to curb coronavirus infection rates. Infection control experts, including Anthony S. Fauci, director of the National Institute of Allergy and Infectious Diseases, have dismissed his proposals as unscientific and dangerous.

Montgomery Health Officer Travis Gayles said that while he empathized with the economic hardship faced by restaurant owners and their employees, state contact-tracing data suggests that indoor dining has contributed to rising infection rates in the county, where more than 1,000 have died of covid-19. He cited guidance from the Centers for Disease Control and Prevention that classified indoor dining as a “high risk” activity.

The lawsuit in Montgomery was one of three launched last week by the Restaurant Association in Maryland; the others were filed in circuit court in Prince George’s County and Baltimore City.

“While indoor eating at restaurants is but one means of transmitting COVID-19, the County has demonstrated that indoor eating creates an additional risk of spreading the infection because patrons are removing their masks to eat,” Prince George’s County Circuit Judge John P. Davey wrote in his ruling.

Davey said the county had the right to halt indoor dining out of “a legitimate government interest to save lives and maintain sufficient hospital beds to care for Prince George’s County citizens.”

Davey’s and Bonifant’s rulings differed from one by Anne Arundel Circuit Judge William Mulford, who last week granted a temporary restraining order that allowed restaurants to continue indoor dining there until Dec. 28, when he’ll hold another hearing.

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Owners of the Fish Market of Maryland in Clinton and Rip’s Country Inn in Bowie testified Wednesday about hundreds of thousands of dollars in lost revenue since the pandemic began.

Prince George’s officials countered that the indoor-dining ban was necessary to limit further infections and deaths in the hard-hit county, which has reported 51,462 cases — the most of any jurisdiction in Maryland. They noted that neither the Fish Market nor Rip’s Country Inn had applied for funding through the county’s $7.6 million Restaurant Resiliency Fund.

“We have to start mitigating now, before it gets way out of control,” said Health Officer Ernest Carter, who was called as a witness for the county. He said contact tracing shows that 18 percent of people who test positive report having been at a restaurant in recent days.

Davey acknowledged in his ruling that closing indoor dining “will create a significant hardship to restaurant owners, employees and suppliers” and that the money in the Resiliency Fund is not enough to cover their losses. He said “closing restaurants on a statewide or regional basis would be a more effective measure to combat COVID-19.”

Also on Wednesday, Maryland state and local officials asked Hogan to release funds from state reserves to help people and businesses affected by the pandemic. Comptroller Peter Franchot (D), who serves as the state’s chief tax collector, said he has identified more than $2 billion in unallocated reserves, of which he said $1 billion should be distributed.

“The suffering going on in our state is completely unacceptable,” said Franchot, who is seeking the Democratic nomination for governor in 2022. “My goodness, tomorrow is Christmas Eve … We can’t turn our backs on our neighbors.”

State Treasurer Nancy K. Kopp (D), Sen. Ben Cardin (D-Md.) and local officials from Baltimore City as well as Montgomery, Frederick and Anne Arundel counties echoed Franchot’s appeal.

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Montgomery County Council Chairman Tom Hucker (D-District 5) said he welcomed the federal stimulus package passed by Congress this week but was disappointed by the exclusion of direct state and local aid. He urged Hogan to allocate $928 million from the state’s rainy day fund toward rental relief and business relief programs.

“There is no reason that we should have hundreds of thousands of residents going hungry while state funds stay idle,” Hucker said.

Asked for comment, Hogan spokesman Michael Ricci said the state must first see what federal relief is provided. He then pointed to the governor’s Tuesday statement on the stimulus package.

“More still needs to be done, including by Congress, to help our economy and our workforce,” Hogan said in the statement. “And when the General Assembly returns to work for the 2021 session, we will be proposing a larger economic and stimulus relief package to provide further support to our struggling families and small businesses.”

Hogan visited the Franklin Woods Center in Baltimore County to see some of the first nursing home residents in the state receive their coronavirus vaccines. He said the state’s health department — which on Wednesday launched a vaccine dashboard to track distribution of the shots — has signed up every nursing home and assisted-living center in Maryland to receive the shots.

Virginia also has launched a vaccine-tracking website that the public can access; the District has not yet done so.

In a call with D.C. Council members on Wednesday, Health Emergency Preparedness and Response Administration Director Patrick Ashley said residents of the city’s nursing homes should receive shots in early January. Other elderly residents, along with teachers and other front-line workers, will be next.

Ashley said the city will soon debut a website and phone hotline where people can find out whether they are eligible for vaccination, make an appointment to get the shots at a pharmacy or a nonprofit if they are eligible or get an email notification that will let them know when they can sign up.

“We want folks to get the vaccination as soon as possible,” Ashley said.

Virginia reported a single-day high of 4,652 new coronavirus cases on Wednesday, with 55 new deaths also reported. Maryland had 2,465 new cases and 49 deaths, while the District reported 326 new cases and seven deaths.

The seven-day average of daily new cases has spiked significantly across the region since Thanksgiving, climbing to 6,373 from 4,989. In the District, the seven-day average of newly reported daily cases has risen from 151 to 232; in Maryland, it’s 2,299, down slightly from 2,250; and in Virginia, it’s increased from 2,588 to 3,842.

Officials are warning that travel and family visits over the Christmas and New Year’s holidays could accelerate the spread and pleaded with people to stay home and avoid gathering — especially unmasked or indoors — with others not from their households.

More than 11,000 people from D.C., Maryland and Virginia have died of covid-19, the disease caused by the coronavirus.

Teddy Amenabar and Julie Zauzmer contributed to this report.

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