Supreme Court rules governor has authority to restrict, ban indoor dining

Coronavirus New Mexico

SANTA FE, N.M. (KRQE) – The New Mexico Supreme Court ruled Wednesday that the state does have the power to enact a Public Health Order and restrict or close indoor dining at restaurants.

In light of the governor’s announcement Wednesday, allowing indoor dining to resume at 25% capacity starting Aug. 29, the Chief Justice repeatedly asked if the hearing was even necessary. Both sides agreed that it was.

“The governor indicated that orders would be changed to allow indoor dining at 25% on Saturday [Aug. 29], but its fully possible a month from now orders will be issued or changed again to completely close indoor dining,” said Angelo Artuso, attorney for restaurants.

Wednesday’s hearing stems from a lawsuit filed by six restaurants and the New Mexico Restaurant Association soon after restaurants were forced to close indoor dining in July. At that time, New Mexico was seeing a spike in daily new coronavirus cases.

“That person with a stroke of a pen has put tens of thousands of people out of work, has closed hundreds of restaurants. Surely the Constitution would allow the citizens of businesses affected by that ruling to put the state to its proof,” said attorney of restaurants Angelo Artuso.

In the lawsuit, restaurants wanted to operate at 50% capacity for indoor dining. “I would say that what the real parties in interest claim are arbitrary and capricious and done unreasonably was actually done. Again, based in the context of a very serious spike in cases, an increase in rapid responses to restaurants which is documented by their own expert,” said Matthew Garcia, attorney for the state.

Even before Wednesday’s hearing, restaurants were halfway to their goal of 50% capacity for indoor dining with the governor announcing restaurants can open at 25% capacity starting Saturday.

“We’re a little baffled since we have a Supreme Court hearing in less than an hour,” said CEO of NM Restaurant Association, Carol Wight.

The attorney for the restaurants also argued the governor should not be able to envoke a Public Health Order without essentially going to court and making her case. Earlier this month, the New Mexico Supreme Court did rule that the governor does have the power to enforce the Public Health Order by threatening $5,000 a day fines to businesses who violate the order.

The Justices also ordered a District Court judge who originally ruled restaurants could serve indoors violating the order, to dismiss the case entirely.

Statement from the New Mexico Restaurant Association

“The governor and, now state Supreme Court, have sufficiently crushed the hope of New Mexico restaurants and today’s decision by the court reiterates the despair our industry faces during this pandemic. The timing of the governor’s reopening at 25% is not lost on us, of course, we are happy to reopen at all. But the NM Supreme Court made it clear that there is no effective process in place to question a public health order. It is baffling that our state leadership continues to ignore the livelihoods of servers, cooks, and dishwashers, as well as the long-term economic impact of this prolonged closure.  This is not data, not science, it is bad politics and restaurants remain at the mercy of the governor.”

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