New Mexico court grapples with standoff over virus closures

SANTA FE, N.M. (AP) — The New Mexico Supreme Court is hearing arguments Wednesday in a legal standoff over whether the administration of Gov. Michelle Lujan Grisham has the authority to prohibit indoor dining at restaurants as a health precaution because of the coronavirus pandemic.

The arguments were pre-empted by an announcement by the governor that she plans to lift the ban as part of a revised public health order that will take effect Saturday. Among other things, the new order will clear the way for restaurants, breweries, wineries, distillers, cafes and coffee shops to serve customers indoors in limited capacities.

Restaurants have been whipsawed as Lujan Grisham’s administration suspended its reopening of the economy in mid July — and put a halt to indoor dining — in response to a wave of COVID-19 infections and deaths that has relented in recent weeks.

The legal case centers on the state's authority to dictate the terms of restaurant services. The court recently upheld the state's authority to levy hefty $5,000 daily fines against businesses that flout health orders linked to the coronavirus.

A handful of states, including California and New Jersey, currently prohibit indoor dining as a temporary safeguard against the spread of COVID-19.

Attorneys for the restaurant industry assert that state health officials are invoking science as the basis of restrictions on restaurants without sharing specific scientific findings or deliberations.

“The state’s ‘science’ alleged to support the devastating decision to prohibit indoor dining is undisclosed, unreviewed, and without checks,” attorneys for restaurants said in a briefing Monday.

In support of restriction, health officials are citing medical journals, outbreaks traced to restaurants by the federal Centers for Disease Control and Prevention and local infections that trigger “rapid response” testing and contact tracing in New Mexico. Restaurants and health care facilities have routinely had more outbreak responses than other sectors of the New Mexico economy.

The court case began as a standoff between state environmental regulators and Jalisco Cafe in Silver City over the business' alleged refusal to cease indoor dining service despite sanctions and a permit suspension.

Other businesses entered the fray: K-Bob's Steakhouse restaurants in Raton and Las Vegas, Trinity Hotel in Carlsbad, the Red River Brewing Co. in Red River — as well as the New Mexico Restaurant Association.

New Mexico is faring better against virus infections than neighboring Arizona and Texas.

As of Tuesday, it had the lowest average rate of positive tests in the western U.S., according to an analysis by The Associated Press of data collected by the Johns Hopkins University Center for Systems Science and Engineering. The number of average daily deaths is hovering between four and five statewide.

Separately, a bevy of lawsuits have been filed by small businesses that are seeking compensation from the state for financial losses linked to pandemic health orders.

Aside from the burdens for the businesses and their workers, Tupper Schoen, general manager of The Pantry restaurant in Santa Fe, said he expects customers will continue to be wary of indoor dining.

“I do believe that there are many, many people who would not choose to go indoors, still, but they would go out on the patio to eat,” he said.

For most people, the new coronavirus causes mild or moderate symptoms, such as fever and cough. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia, and death.